Ethics AbAndonEd: Medical Professionalism and Detainee in the “”

A task force report funded by IMAP/OSF

November 2013 Copyright © 2013 Institute on Medicine as a Profession Table of Contents All rights reserved. this book or any portion thereof may not be reproduced or used in any manner whatsoever without the express written permission of the AboUt iMAP And osF v publisher except for the use of brief quotations in a book review. AcknoWlEdgMEnts vii Printed in the of America First Printing, 2013 ExEcUtivE sUMMArY xi institUtE on MEdicinE As A ProFEssion Findings And rEcoMMEndAtions xxxi columbia University, college of Physicians and surgeons 630 West 168th street P&s box 11, new York, nY 10032 introdUction 1 www.imapny.org chAPtEr 1: The role of health professionals in abuse of 11 prisoners in U.S. custody

chAPtEr 2: Organizational structures and policies that 55 directed the role of health professionals in detainee abuse

chAPtEr 3: Hunger strikes and force-feeding 83

chAPtEr 4: Education and training of military physicians on 121 treatment of prisoners

chAPtEr 5: Health professional accountability for acts of 135 through state licensing and discipline

tAsk ForcE MEMbEr biogrAPhiEs 157

APPEndicEs 1. Istanbul Protocol Guidelines for Medical Evaluations of 169 Torture and Cruel, Inhuman or Degrading Treatment, Annex 4 2. World Medical Association Declaration of Malta on Hunger Strikes 175 3. Ethics Statements and Opinions of Professional Associations on 181 Interrogation and Torture 4. Professional Complaints Filed 201

notEs 215 About IMAP and OSF

Funding for this report was provided by: thE institUtE on MEdicinE As A ProFEssion (iMAP) aims to make medical professionalism a field and a force. it promotes this mission through research and policy initiatives. Four key values underlie medical professionalism: physicians and the health care system must be committed to (1) altruism and promotion of patients’ best interests, (2) effective physician self-regulation, (3) maintenance of technical competence, and (4) physician civic engagement to promote patient and societal well-being. thE oPEn sociEtY FoUndAtions work to build vibrant and tolerant soci- eties whose governments are accountable to their citizens. Working with local communities in more than 100 countries, the open society Foundations sup- port justice and human rights, freedom of expression, and access to public health and education. Acknowledgments

tAsk ForcE MEMbErs: scott A. Allen, Md, FAcP steven reisner, Phd University of , Riverside Coalition for an Ethical Psychology george J. Annas, Jd, MPh hernán reyes, Md, FMh ob/gyn Boston University International Committee of the Red Cross karen brudney, Md david J. rothman, Phd Columbia University Columbia University richard n. gottfried, Jd leonard s. rubenstein, Jd New York State Assembly Johns Hopkins University vincent iacopino, Md, Phd steven s. sharfstein, Md, MPA Physicians for Human Rights Sheppard Pratt Health Systems Allen s. keller, Md Albert J. shimkus, Jr. New York University U.S. Naval War College robert s. lawrence, Md Eric stover Johns Hopkins University University of California, Berkeley steven h. Miles, Md gerald E. thomson, Md University of Minnesota Columbia University Aryeh neier Frederick E. turton, Md, MbA, MAcP Open Society Foundations Emory University deborah Alejandra Popowski, Jd brig. gen. (ret.) stephen n. xenakis, Md Harvard University viii | Ethics AbAndonEd Acknowledgments | ix leonard rubenstein and gerald thomson provided overall leadership in the Funding for the project was provided by iMAP and the open society Foundations. organization of the task Force and the research, writing, and review of this report. the overview of clinically and ethically appropriate responses to hunger strikes The principal authors and reviewers of chapters and other sections are as follows. contained in chapter 3 was published in expanded form in hernán reyes, scott Institutional affiliations listed for identification purposes only. A. Allen, and george J. Annas, “Physicians and hunger strikes in Prison: confrontation, Manipulation, Medicalization and Medical Ethics,” World introdUction: david rothman, Aryeh neier Medical Journal 59, no. 1 (February 2013) and no. 2 (April 2013). it is used here review by steven Miles, leonard rubenstein, gerald thomson with permission. chAPtEr 1: leonard rubenstein review by vincent iacopino, steven Miles, steven reisner, Albert shimkus, Eric stover, gerald thomson, stephen xenakis chAPtEr 2: leonard rubenstein review by vincent iacopino, steven Miles, steven reisner, Albert shimkus, Eric stover, gerald thomson, stephen xenakis chAPtEr 3: hernán reyes, scott Allen, leonard rubenstein, george Annas review by steven Miles, gerald thomson chAPtEr 4: karen brudney, Frederica stahl (not a task Force member), with assistance from david rothman review by leonard rubenstein, steven Miles chAPtEr 5: deborah Popowski, kate nicholson, with contributors shuenn (Patrick) ho, Pooja nair (nicholson, ho, and nair are not task Force members) review by richard gottfried, leonard rubenstein

Eric stover read the entire report for consistency, accuracy, and style. Albert Pierce, Phd, University Professor of Ethics and national security, national defense University, participated in task Force discussions as an observer. Jonathan Marks, director, bioethics Program, Pennsylvania state University, reviewed and provided extensive comments on draft chapters of the report. sondra crosby, Md, Associate Professor of Medicine, boston University, reviewed chapter 3. in addition, the task Force thanks the following individuals for research assistance: Frederica stahl, Whitney Adair, katherine Footer, shuenn (Patrick) ho, sarah humphries, and Pooja nair. Jonathan cobb read and contributed helpful comments on the entire manuscript. laura sider Jost edited the manuscript. other individuals who made substantial contributions to this report wish to remain anonymous. Executive Summary

thE 9/11 tErrorist AttAcks on the United states resulted in U.s. govern- ment-approved harsh treatment and torture of detainees suspected of having information about terrorism.1 Military and intelligence-agency physicians and other health professionals, particularly psychologists, became involved in the design and administration of that harsh treatment and torture—in clear conflict with established international and national professional principles and laws.2 in 2010, the institute on Medicine as a Profession (iMAP) and the open society Foundations convened the task Force on Preserving Medical Profes- sionalism in national security detention centers (task Force) to examine what is known about the involvement of health professionals in infliction of torture or cruel, inhuman, or degrading treatment of detainees in U.s. custody and how such deviation from professional standards and ethically proper conduct occurred, including actions that were taken by the U.s. department of defense (dod) and the ciA to direct this conduct. the task Force met regularly between december 2009 and January 2012. its members authored and reviewed chapters and policy proposals for the group to consider. this report contains the task Force’s analyses, findings, and recom- mendations. the report is based on information from unclassified, publicly avail- able information. Where gaps in knowledge exist, we note that information is missing and discuss its importance and its potential impact on the issue assessed, as well as the value of further investigation. in a few instances, a member of the task Force had personal knowledge of facts discussed, but consistent with an approach that relied on the public record, the report is not based on information obtained by any of its members in another capacity. Additionally, because of the professional roles they play, some members of the task Force may have a person- al stake in the report’s findings and conclusions; in such instances, we disclose that fact in the discussion. the task Force sought consensus on findings and xii | Ethics AbAndonEd Executive Summary | xiii recommendations. Members agreed to approve the final product, however, even violations against detainees progressed differently in the military and when they did not agree with every statement and recommendation. the ciA, both facilitated that involvement in similar ways, including A note on the terminology used in this report: When a document refers to a undermining health professionals’ allegiances to established principles specific category of medical personnel (e.g., physician or psychologist), this of professional ethics and conduct through reinterpretation of those report refers to that individual using the same term. in many of the documents, principles. however, no specific occupation is identified. in such cases, we use more gener- 3. the secrecy surrounding detention policies that prevailed until 2004– al terminology, either “health professional,” where the context is clear that it 2005, when leaked documents began to reveal those policies. secrecy refers to someone holding a professional license, or “medical personnel,” which allowed the unlawful and unethical interrogation and mistreatment of includes all occupations in the health field, including physicians, psychologists, detainees to proceed unfettered by established ethical principles and registered nurses, nurse practitioners, physician assistants, corpsmen (U.s. standards of conduct as well as societal, professional, and navy or Marine-trained enlisted medical personnel), medics (U.s. Army-enlist- nongovernmental commentary and legal review. ed medical personnel), and technicians. in ciA documents, “medical officer” is frequently used. According to current position descriptions on the ciA’s web- these key elements, as well as the task Force’s recommendations for reme- site, a medical officer is a physician,3 but the ciA’s office of Medical services diating the participation of health professionals in detainee torture or cruel, (oMs) guidelines on medical support for interrogation, which are discussed inhuman, or degrading treatment, are summarized below and addressed in extensively in this report, refer to physician assistants as medical officers as detail in the body of this report. well,4 so the task Force does not assume that a ciA medical officer involved in interrogation activities is a physician unless the document so specifies. one other note on terminology: in the text, we refer to people in custody as The development and use of torture and cruel, “detainees” because this has become the common way to refer to them in the inhuman, or degrading treatment in U.S. detention centers media and in reports. the task Force recognizes, however, that this designa- tion stems from the decision of President bush to deny prisoner-of-war status the origins of torture and cruel, inhuman, and degrading treatment of detainees to them. by using the term detainee, the task Force does not convey endorse- are now well documented through released dod and ciA documents and con- ment of this decision. the recommendations use the word “prisoner” as it is gressional reports, as well as independent investigations by journalists and forward-looking. human rights organizations.5 the task Force has determined that actions taken by the U.s. government immediately after 9/11, the United states took captives in Afghanistan and immediately following 9/11 included three key elements affecting the role of elsewhere. those detained by the U.s. military, numbering several hundred at health professionals in detention centers: first and thousands later, were held in Afghanistan, then at guantánamo bay 1. the declaration that as part of a “war on terror,” individuals captured starting in January 2002, and then in iraq after the U.s. invasion in 2003. other and detained in Afghanistan, Pakistan, and elsewhere were “unlawful U.s. captives, through a process of “extraordinary rendition,” were secretly combatants” who did not qualify as prisoners of war under the geneva transferred to third countries, where it was known that torture was used during conventions. Additionally, the U.s. department of Justice approved of interrogation. the ciA had its own captives, approximately 100 in number, interrogation methods recognized domestically and internationally as identified as “high-value” detainees, who were kept in secret ciA-run “black constituting torture or cruel, inhuman, or degrading treatment. site” facilities for interrogation. What happened at those sites remains classi- fied, except for detainee accounts reported by the international committee of 2. the dod and ciA’s development of internal mechanisms to direct the the red cross (icrc), as well as Justice department legal opinions and a ciA participation of military and intelligence-agency physicians and inspector general’s report. the ciA was also involved to an unknown extent in psychologists in abusive interrogation and breaking of hunger strikes. interrogations of detainees at military facilities. Although the involvement of health professionals in human rights xiv | Ethics AbAndonEd Executive Summary | xv

the publicly stated goal of interrogations at U.s. detention facilities was to by the summer of 2002, a secret memorandum from the Justice department’s obtain information that would allow the United states to identify and stop poten- office of legal counsel, issued in response to a ciA request, claimed that an ini- tial terrorist strikes and capture additional terrorists. traditional guidelines for tial core set of 10 “enhanced” methods could be used legally as part of the inter- interrogation used by the Fbi and the military eschewed and indeed prohibited rogation program designed for , a designated high-value detainee. methods that were in violation of the geneva conventions and the convention the memorandum restricted the definition of severe mental or physical pain or Against torture and other cruel, inhuman or degrading treatment and suffering in a manner that permitted draconian interrogation methods, includ- Punishment, treaties that the United states, as a party, is bound to follow. officials ing attention-grasping (grasping a detainee with both hands and drawing him at the highest levels of the government rejected these guidelines, however, stating toward the interrogator), throwing a detainee repeatedly against a wall, facial that they believed traditional methods of interrogation were too time-consuming holds (forcibly holding the head immobile), facial slaps, cramped confinement, to prevent feared imminent attacks. As a result, almost immediately after 9/11, the wall-standing (forcing a detainee to support his weight on his fingers against a U.s. government adopted abusive methods of interrogation. wall), stress positions, sleep deprivation, use of insects, and . the United states agents subjected the first detainees taken into custody in Justice department based its judgments on information provided by the ciA and Afghanistan in late 2001, held principally at detention facilities at bagram Air the dod, stating that those judgments were founded on experiences with the less base and in kandahar, to beatings, exposure to extreme cold, physical suspen- harsh sErE training of U.s. service personnel as well as on consultation with out- sions by chains, slamming into walls, sleep deprivation, constant light, and side psychologists. forced nakedness and others forms of humiliating and degrading treatment.6 the Justice department memorandum stated that health professionals were Although the interrogation methods initially used in Afghanistan appear to consulted in the development of “enhanced interrogation” techniques and that have been ad hoc, a theory of interrogation soon emerged that was based on “a medical expert with sErE experience” would be present during certain inter- inducing fear, anxiety, depression, cognitive dislocation, and personality disin- rogations and “the procedures would be stopped if deemed medically necessary tegration in detainees to break their resistance against yielding information. to prevent severe…harm….”10 detainee accounts reported by the icrc stated based on this theory, U.s. agents developed new interrogation methods that medical personnel—whose specific professions were not revealed to the designed to bring about “debility, dependency and dread.”7 the oMs summa- detainees—were present during ciA interrogations and occasionally intervened. rized the approach as seeking to “psychologically ‘dislocate’ the detainee, maxi- over time, the role of medical personnel in ciA interrogations expanded. in mize feelings of vulnerability, and reduce or eliminate the will to resist our 2003, the oMs drafted a first set of “medical guidelines” for interrogation that, efforts to obtain critical intelligence.”8 while heavily redacted in the publicly released version, described a policy role for the oMs that entailed reviewing and approving the use of enhanced inter- thE dEvEloPMEnt oF rogation methods. the review included assessing the potential harms of enhanced ciA intErrogAtion MEthods interrogation methods and placing limits on their use. the oMs advised limits With early direction from the ciA, the new interrogation methods were devel- such as stopping exposure to cold just at the point where hypothermia would like- oped by interrogators and psychologists from techniques used in the pre-9/11 ly set in, stopping loud noise before permanent hearing loss would occur, and survival, Evasion, resistance, Escape (sErE) program for training U.s. armed restricting the use of stress positions to a maximum of 48 hours. the oMs services personnel to resist coercive interrogation and mistreatment if captured. guidelines also described an oversight role for medical personnel during inter- the interrogators and health professionals transformed training methods used to rogations; they would be present to ensure those interrogations would not cause resist torture into abusive methods of interrogation to be used on detainees.9 serious or permanent harm. in the case of waterboarding, the guidelines advised At the same time, bush administration officials laid the legal groundwork for keeping resuscitation equipment and supplies for an emergency tracheotomy a policy that would abandon restrictions on torture and cruel, inhuman, or on hand. the guidelines advised that an unresponsive subject must be righted degrading treatment imposed by treaty obligations and U.s. criminal law. Early immediately and a thrust just below the breastbone administered by the inter- in 2002, the White house counsel declared that the geneva conventions did rogator. the guidelines further stated: “if this fails to restore normal breathing, not apply to detainees at guantánamo. aggressive medical intervention is required. Any subject who has reached this xvi | Ethics AbAndonEd Executive Summary | xvii degree of compromise is not considered an appropriate candidate for the water- forced the detainee to sit painfully for as many as 18 hours a day; (d) abdominal board, and the physician on the scene cannot concur in the further use of the and facial slaps; (e) forcibly holding the head immobile; (f) pushing and slam- waterboard without c/oMs consultation and approval.”11 ming the detainee against walls; (g) grabbing the neck area during questioning; in 2005, the department of Justice issued a memorandum on the legality of and (h) bland, low calorie diets. 14 interrogation techniques—expanded from the initial core set of 10—that was the department of Justice pronounced all of these techniques to be legal based on ciA-described experiences with interrogations of detainees between under U.s. law. interrogation methods used but not reviewed by the Justice 2002 and 2005.12 the descriptions and their differences from the 2002 memo- department for legality included threatening detainees and their families, cock- randum, which cites sErE descriptions, are particularly revealing since the ing a gun next to a detainee’s head, and isolation. in addition, the ciA imposed 2005 memorandum includes accounts of the methods actually used on conditions of confinement that contributed to the overall , coer- detainees rather than those employed in the sErE training program. cion, degradation, and suffering of detainees. detainees were also subjected to the 2002 memorandum described sleep deprivation as keeping prisoners beatings and sexual and cultural . awake for no more than 48 hours. if a detainee fell asleep during that time, he the 2005 Justice department memorandum relied heavily on purported was awakened. the 2005 memorandum described periods of sleep deprivation medical opinion, supplied by the ciA, to claim that the enhanced interrogation of up to 180 continuous hours—more than a week—that could be followed by methods would not inflict severe mental or physical pain or suffering, as defined 8 hours of sleep and then repeated. detainees were kept awake by being shack- by the memorandum, on the detainees. the task Force finds, however, that there led in a standing position, hands to the ceiling and feet to the floor, fed by deten- was no basis in either clinical experience or research studies to substantiate these tion personnel and diapered so that nothing interfered with the standing posi- opinions. indeed, the oMs guidelines discussing each method are bereft of cita- tion. the memorandum acknowledged that the position produced swelling of tions to the extensive medical literature on torture. the legs. the detainees were nude. Ambient temperatures during sleep depriva- tion were not described, but nudity was described in the 2005 memorandum as thE U.s. MilitArY And thE introdUction a separate and often concurrent interrogation technique that was accompanied oF ciA MEthods oF intErrogAtion by air-conditioned ambient temperatures often as low as 68 degrees and on the evolution of abusive interrogation methods in the U.s. military took a more occasions as low as 64 degrees. convoluted course than in the ciA because of significant internal opposition to Water-dousing was not included in the 2002 memorandum, but the 2005 the techniques. nevertheless, under pressure from the civilian leadership, by memorandum described nude detainees who were kept in environments with the end of 2002 the military implemented sErE-based interrogation strategies temperatures as low as 64 degrees and doused with cold water of 41 to 59 at guantánamo, and later in iraq and Afghanistan as well. degrees that was poured from containers or sprayed from hoses. Aside from pro- in early 2002, the dod established the first of its behavioral science consul- ducing extreme discomfort, such a procedure risked producing hypothermia, a tation teams (bscts), which typically but not always consisted of a psycholo- dangerous and potentially deadly drop in body temperature. gist, a psychiatrist (a physician specializing in mental health), and a mental Waterboarding, described only briefly in 2002, was meant to induce the feel- health technician (a non-physician, armed services–trained enlisted person), ing and threat of imminent death. in the 2005 memorandum, waterboarding that played a key role in developing the sErE-based interrogation methods. in was described as causing the sensation of drowning and carrying risks of aspira- late 2002, the first bsct, deployed at guantánamo, recommended the use of tion, airway blockage, and death from asphyxiation. sleep and sensory deprivation, exposure to extremes of noise and temperatures, other methods of enhanced interrogation reviewed for the ciA by the stress positions, and other enhanced methods (waterboarding was not includ- department of Justice in 2005 included (a) stress positions consisting of sitting, ed). the bsct recommendations were transmitted up the chain of command kneeling, and leaning in awkward positions for long periods of time; (b) stand- and largely approved by the secretary of defense. implementation began in ing facing a wall 4–5 feet away with arms outstretched, fingers resting on the november 2002 during a 54-day interrogation of Mohammed al-Qahtani, who wall to support body weight, with the detainee not permitted to reposition was alleged to have been a part of the 9/11 hijacking group but was denied entry hands or feet; (c) cramped confinement in a small space that in some cases to the United states. the U.s. military deprived him of sleep through the use of xviii | Ethics AbAndonEd Executive Summary | xix loud noise, yelling, and forced standing; subjected him to multiple forms of sex- in effect today. similarly, the ciA’s oMs guidelines stated that one role of med- ual and religious ; doused him with cold water (including when he ical officers was to protect detainees from severe harm, yet they were to be pres- was naked); strapped him into painful stress positions; and terrified him with a ent when torture was being inflicted. dog. A bsct psychologist consulted on the interrogation and a bsct psychia- trist witnessed part of it. 13 MEdicAl cArE For dEtAinEEs Although internal controversy had led to further reviews of interrogation in the period 2002–2004, medical care for detainees was chaotic, especially in methods in early 2003, the existing evidence shows that sleep deprivation, iso- Afghanistan and iraq, with little attention to maintaining and storing medical lation, sensory deprivation, bombardment with loud noise, stress positions, and records, inadequate supplies for treatment, and lack of clarity on applicable exploitation of phobias, among other methods, were all used at guantánamo. standards of care.15 After the U.s.-led invasion of iraq in March 2003, these methods were used At guantánamo, there were early efforts to organize medical care, although there as well. Although no bsct was established in iraq until after the Abu it took more than two years before sufficient protocols were established. to the ghraib scandal broke in April 2004 (with the exception of one brief period), the task Force’s knowledge, medical personnel at guantánamo providing clinical use of torture was pervasive. there is evidence that detainees at Abu ghraib and care were not directly engaged in interrogation support activities and in some elsewhere in iraq were also subjected to beyond the authorized interro- cases were highly insulated from it. the dod established a modern hospital and gation methods, including beatings and sexual assaults.14 made specialists available. in one study, a sizable minority of released detainees bscts also advised intelligence and detention officials on conditions of con- expressed satisfaction with the quality of clinical care. Many detainees, howev- finement that would enhance capture shock, dislocate expectations, foster er, complained about it, especially that the quality of clinical care was compro- dependence, and support exploitation of detainees to advance intelligence gath- mised by the conditions of their detention and their lack of trust in all medical ering. bsct recommendations included using fans and generators to create personnel because of the role of the bscts in interrogation. some detainees did white noise as a form of psychological pressure; restricting some detainees to no not seek care out of reasonable fear that their medical information would be more than four hours of sleep a day; depriving them of basic living items—offi- passed on to interrogators. Moreover, some medical practices were highly ques- cially named “comfort items”—such as sheets, blankets, mattresses, and wash- tionable, including the unexplained use of the anti-malarial drug mefloquine, cloths; and controlling their access to the koran. which may have significant mental side effects. the bscts’ core role, however, was to assess detainees’ vulnerabilities Mental health care appears to have been especially deficient. despite the through psychological evaluations and review of their medical records, and psychological deterioration of detainees at guantánamo in 2002 and 2003, evi- advise interrogators on how to exploit those vulnerabilities to gain intelli- denced by more than 350 acts of self-harm in a single year, available medical gence. Members of the bscts advised on interrogation strategies before and records show no official clinical investigations of the circumstances or causes of during interrogations, including advising interrogators on when to increase the detainees’ suffering. diagnoses of post-traumatic stress disorder were made the harshness of the interrogation. Although the records of interrogations by independent medical evaluations arranged by lawyers for detainees. in cases remain classified, there is evidence that bscts urged interrogators to increase where the connection between abusive practices and psychological deteriora- the intensity of interrogation. tion was self-evident, such as the use of isolation leading to severe anxiety, over time, as discussed below, both military and ciA policies adopted lan- depression, or psychosis, clinicians lacked the authority to change the circum- guage that described the function of psychologists and physicians as being there stances of confinement. to protect detainees from harm. by 2004, the military had begun to refer to in iraq and Afghanistan, evidence shows that clinical medical personnel bsct members as “safety officers” who would protect detainees by assessing were not isolated from interrogations as at guantánamo; they engaged in vari- the extent of harm being done to them and preventing what the dod referred ous aspects of interrogation as well as other security functions. Physicians to as “behavioral drift” by interrogators. however, the military was simultane- reportedly monitored interrogations and psychiatrists signed off on interroga- ously directing bsct members to advise interrogators in exploiting detainee tion plans involving sleep deprivation. According to a survey released in 2005 vulnerabilities, amounting to a problematic contradiction in roles that remains by the Army surgeon general, in iraq 10 percent of medical personnel, which xx | Ethics AbAndonEd Executive Summary | xxi may have included physicians, stated that they had been present in interroga- combatants who are not subject to all ethical duties of their profession, even tions. in Afghanistan it was even higher—17 percent. it remains unclear what though they are required to hold a professional license. precise roles they played. American and international medical associations have, by contrast, made Physicians and nurses were in a strong position to identify the physical and clear that a physician using professional skills is always a physician subject to mental consequences of torture and cruel, inhuman, or degrading treatment the ethical requirements of the profession. the dod position undercuts the among detainees in their care. All military personnel have a duty to report fundamental role of health professionals in society and the duties attached to abuse, but at least through 2004, the military had no policies or procedures for that role, including non-participation in interrogation on the basis that it is medical personnel reporting of abuse. What is clear, however, is that in iraq and inherently coercive. Afghanistan, as at guantánamo, there was no policy or guidance regarding med- the dod wants its behavioral science consultants to have professional qual- ical personnel reporting of abuse. ifications, including a license for clinical practice in psychology or forensic psy- Even as the use of torture by the military began to decline in 2005 and 2006 chiatry, but then excludes them from the full panoply of ethical norms that gov- when a new dod interrogation field manual was issued that prohibited the use ern their professions and that they committed to uphold. the American of many (but not all) highly coercive methods, physicians and nurses became Psychological Association, while opposing torture, supports the role of psychol- involved in unethical force-feeding and use of restraint chairs in breaking ogists in interrogation, and has rejected the claim that professional obligations hunger strikes. this subject is discussed below. differ depending on role. in the task Force’s view, the American Psychological Association incorrectly permits psychologists to balance professional obliga- tions against national security interests and embraces the idea that psycholo- Policies that directed health gists can simultaneously and without conflict play the roles of aiding in intelli- professional participation in torture or cruel, gence gathering and safeguarding the well-being of detainees in interrogation. inhuman, or degrading treatment the American Psychological Association also mistakenly relies on forensic stan- dards of practice to justify these roles, as those standards do not eliminate the the activities of medical personnel at the ciA and in the military were largely duty to avoid or minimize harm and the forensic role does not involve acts that a result of policies designed, contrary to professional ethical requirements, to intentionally impose harm. employ those personnel in advancing interrogation. A second key change adopted by the dod involved conflating ethical Although the ciA no longer detains terrorist suspects, many of the dod poli- standards for health professionals involved in interrogation with general cies and rules governing health professionals in detention centers remain in legal standards. the very purpose of medical ethics is to establish profes- place and must be changed if the integrity of health professional practice in the sional norms of practice that extend beyond adherence to the law. Medical military is to be restored. ethics recognize the unique role health professionals have in society, hav- the dod made three key changes in ethical standards and policies to ing authority and autonomy as well as the duty to advance well-being. rationalize and facilitate medical and psychological professionals’ participa- Unlike an interrogator, who may create stress for a detainee so long as he tion in interrogation. First, contrary to ethical standards adopted by all med- or she acts within legal standards, including those prohibiting torture and ical and psychological associations, including standards applicable to forensic cruel, inhuman, or degrading treatment, a health professional has an obli- practice, it limited the professional duty to not do harm. the duty to avoid or gation not to participate in acts that deliberately impose pain or suffering minimize harm, the dod holds, does not apply to the bscts involved in inter- on a person. replacing ethical standards with a legal one—that is, only to rogation because they are not involved in clinical treatment. the dod deter- refrain from torture and cruel, inhuman, or degrading treatment—eviscer- mined for itself what rules bsct members should follow and unilaterally ates the ethical standards. deemed those rules ethical. they amounted to no more than adherence to the the ciA also replaced medical ethical standards with legal ones, though legal duty of all members of the military not to treat detainees inhumanely. it did not distinguish, as the military did, between duties of health profes- the dod went so far as classifying physicians and psychologists on bscts as sionals engaged in clinical care and those supporting interrogation. instead, xxii | Ethics AbAndonEd Executive Summary | xxiii it adopted a standard that required all medical officers to refrain from acts mation was shared with interrogators, and many declined to seek medical care that impose “severe physical or mental pain and suffering,” a phrase bor- as a result. the dod policy on access to medical records is therefore seriously rowed from the legal definition of torture. in other words, the ciA permit- deficient. ted medical officers to engage in any act toward a detainee short of engaging Another deficient dod policy is that on abuse reporting by health profes- in torture. sionals. Under widely accepted international standards established in the 1999 the third key change, adopted after criticism of health professionals’ roles Manual on Effective investigation and documentation of torture and other in interrogation, was to characterize the dod’s behavioral science consultants cruel, inhuman or degrading treatment or Punishment, commonly known as as “safety officers” and to claim that medical personnel in ciA black sites were the istanbul Protocol, physicians have the responsibility to conduct a thorough present to protect detainees from excessive harshness during interrogations. physical and mental examination of a prisoner or detainee when torture or the safety officer description remains in place today within the military. cruel, inhuman, or degrading treatment is suspected. the protocol requires these descriptions rationalized the participation of health professionals in physicians to both engage in that examination and make a determination of the interrogation, and reveal the contradictory functions health professionals likely source of the injury (a summary of clinical guidelines under the protocol have played. the safety officer designation, for example, was accompanied by is contained in the appendix of this report). the responsibility to identify vulnerabilities of detainees and collaborate with A 2005 report from the Army surgeon general acknowledged that despite a interrogators in exploiting them. the dod has never addressed the contradic- general obligation of all soldiers to report abuse of detainees, specific require- tion in these roles. Further, medical ethical principles do not permit any role ments for abuse reporting by medical personnel were either not in place or vague in an individual interrogation, even as a purported safety officer, as mere pres- and inadequate. Medical personnel were generally not trained in abuse reporting ence can signal approval of abusive practices so long as the health professional until at least 2004 or 2005, and even then the scope of reporting responsibilities expresses no objection. remained unclear. the surgeon general called for guidance and clarification at in addition, at guantánamo bay, policy has allowed interrogators to use every level of command as well as standardized guidance on reporting and pro- medical and psychological information about detainees to exploit their weak- cessing of claims of abuse. to this day, however, abuse reporting requirements for nesses in interrogation. in 2004, the icrc reported that military interrogators health personnel working in detention centers remain vague and bsct training were freely accessing detainee medical records. the dod at first denied the guides do not include abuse reporting. the reporting requirements and training claim and then established instructions (policies issued by civilian authority to guides do not instruct a clinician who suspects abuse to conduct a medical exam- govern practices by the military services) allowing such access. in response, ination, as required by the istanbul Protocol, to determine whether torture may medical associations issued standards and statements against the use of prison- have occurred. indeed they preclude such examinations. ers’ medical information, whether from clinical records or otherwise, to gain an the most fundamental problem with abuse reporting standards, however, advantage in interrogation. the dod then issued a series of confusing and often was the dod’s authorization of “enhanced interrogation methods” and other contradictory policy revisions from which a new policy appears to have forms of torture in interrogation. Until repealed, the dod did not consider emerged: detainee medical information is authorized to be used for intelligence those methods to be abuse and thus they were not reportable. Military person- gathering. clinicians themselves do not share their records of treatment with nel at all levels understood that the methods were approved by military lawyers, interrogators, but bscts are permitted to conduct psychological assessments of likely contributing to the lack of reports of abuse by medical personnel even for detainees and share that information with interrogators so long as it is not used the most brutal interrogations. in a manner that would result in inhumane treatment, be harmful to the the task Force finds that unless changes are made in the standards and poli- detainee, or violate law. cies about abuse reporting and clinical assessments for torture, the potential it remains unclear, however, whether bscts can and do access medical remains for impedance of reporting of abuses by health professionals. treatment records. Policy issued at the highest civilian level of the dod permits the dod recently established an ethics review board for guantánamo that it. there is no legal or regulatory impediment to sharing detainee medical infor- includes one civilian member. this is a positive development, but insufficient mation with interrogators. As described above, detainees knew medical infor- until proper ethical standards are established. xxiv | Ethics AbAndonEd Executive Summary | xxv

Hunger strikes and forced feeding later that year, however, a large coordinated hunger strike, involving as many as 210 detainees, resulted in an escalation of the military response. Physicians, hunger strikes are defined as total fasting with only water ingested for more nurses, and possibly other medical personnel began routinely inserting nasogas- than 72 hours by a mentally competent, non-suicidal person for the purpose of tric tubes through the detainees’ noses into their stomachs, a medical procedure obtaining an administrative or political goal rather than self-harm. hunger done by physicians in civilian circumstances requiring temporary access to the strikers are generally seeking to address grievances and establish a degree of stomach. they administered liquid food through the tube and eventually control over their circumstances of confinement. so long as the individuals removed the tube. detainees who resisted were forcibly restrained and the drink water, refusal of food usually has few medical consequences until 72 nasogastric tube was forcibly inserted. As described by detainees, non-physi- hours have elapsed. in general, it takes 7–8 weeks of refusing food before the cians sometimes participated in the tube insertions and feedings that at times hunger strike may become life threatening. were exceptionally forceful and traumatic. this force-feeding was very different international ethical standards and guidelines for treatment established by from the responses to hunger strikes that have occurred in northern ireland, the World Medical Association and U.s. national medical practice standards turkey, and elsewhere. guide both physicians and detention facilities responses to hunger strikes. in december 2005, frustrated by their inability to stop the hunger strikes and Physicians have the ethical responsibility to determine if a prisoner’s action is the time it took to force-feed, guantánamo authorities took the unprecedented indeed a hunger strike; ensure the hunger striking individual’s well-being; step of introducing special chairs with straps to restrain the detainee’s hands, determine the individual’s competence to make informed decisions; counsel the feet, forehead, and chest for the purpose of force-feeding through nasogastric individual regarding the consequences and risks of extended food refusal and tubes. during the procedure, which is still in use today, medical personnel feed the options he or she has; determine whether the individual’s decisions are detainees in restraint chairs and then keep them there for 60–90 minutes. made freely and without coercion; and see to the medical care of the individual in 2004 and 2005, as the use of force-feeding and, later, restraint chairs during the hunger strike. recognized ethical standards require physicians to act became known, medical associations protested vigorously. the World Medical on behalf of the hunger striker at all times. Physicians must act as medical care Association, which was in the process of strengthening its policy on hunger providers and counselors to prisoners, helping them make decisions. they must strikes, made clear that force-feeding a competent hunger striker is always not act as agents for the detention center or any other authority, seeking to per- unethical. nevertheless, in 2006 the dod issued an instruction that character- suade hunger strikers to give up a fast or end a protest. central to the standards ized hunger strikes as attempted suicides rather than protests,16 contrary to the is the requirement that physicians should never force-feed competent, non-sui- observation of many of its own officers and medical staff that hunger strikes cidal, informed hunger strikers. were indeed protests and not attempts at self-harm. the dod rationalized force- guantánamo had its first hunger strike just weeks after it opened in January feeding as necessary to save lives. it restated the authority and responsibility 2002. the episode ended with an agreement by the authorities to look into of the senior detention facility officer to carry out the directive. the task Force grievances. When strikes recurred and became increasingly difficult to resolve, finds the claim of saving lives not credible: the available evidence suggests in part because they involved large numbers of detainees, the dod adopted that force-feeding has been used commonly, not just in rare instances where a force-feeding policies on the premise that hunger strikes were dangerous and detainee’s life was threatened. detainees should not be allowed to kill themselves by such protests. the policies the dod also claimed that its force-feeding policies follow the procedures of were clearly in violation of established medical standards and principles for the U.s. bureau of Prisons, yet that agency does not use restraint chairs and has dealing with hunger strikers. involuntary feeding was a command decision, not very strict rules on the use of physical restraints on prisoners, including pro- a medical one. hibiting the use of four-point restraints without specific approval of the warden through mid-2005, there were only a few instances of involuntary feeding at as the only means to maintain control over an inmate. the bureau of Prisons guantánamo, and the head of the Joint Medical command, which is responsible also grants detainees access to counsel and to the courts, does not engage in for medical services, told a court that detainees rarely physically resisted it. force-feeding as a tactic to break political protests, and requires that the response xxvi | Ethics AbAndonEd Executive Summary | xxvii to political protests be in accord with accepted medical practice. Physicians sent unequivocal ethical standards applied. Postgraduate medical residency pro- to guantánamo are screened by the dod prior to deployment to ensure that they grams, even those in military medical centers, do not provide separate ethics do not object to force-feeding. training other than discussions of issues related to particular patients. in 2009, a federal court determined that force-feeding in restraint chairs had All military physicians receive basic officer training, which provides orienta- become standard policy at guantánamo. Feedings in restraint chairs were gener- tion to military criminal law, courts-martial procedures, aspects of the Uniform ally administered daily as long as the hunger strike continued, in some cases for code of Military Justice, the geneva conventions, and the U.s. Army field man- months or years. For some detainees, the use of restraint chairs and force-feeding uals. these materials include prohibitions against mistreatment of prisoners of was painful and constituted a violent assault; some have suffered long-term dele- war, but prior to 2005, military physicians received very little actual training on terious consequences as a result. the task Force concludes that the practice is roles and responsibilities in relation to prisoners and detainees, even on such used as a punitive measure to induce prisoners to give up their protests. basic issues as abuse reporting and standards of care. in 2005, the military insti- it is clear to the task Force that the policy of force-feeding deviates from tuted pre-deployment training specifically for medical personnel who will be standard, accepted medical and ethical treatment of hunger strikers and, engaged in prisoner or detainee care, but the task Force was unable to access depending on the individual circumstances, amounts to either torture or inhu- the training materials. the task Force believes such training should include man and degrading treatment. Military physicians, directed by dod regulations matters covered by this report, including participation in interrogation, confi- and detention facility authorities, have participated in force-feeding in violation dentiality and access to medical records, abuse reporting, and appropriate of their ethical principles and standards of care. the force-feeding policies responses to hunger strikes. undercut necessary, ongoing physician-patient relationships and independent the dod acknowledges that the field of psychological or psychiatric support medical judgment. for interrogation lacks an evidence base or certification procedures for practi- the task Force has not been able to obtain the current policy on force-feed- tioners. rather than refraining from placing these health professionals in a posi- ing at guantánamo. At the time of this report, hunger strikes continue. tion where knowledge is lacking but ethical concerns serious, the U.s. Army has created a training course for behavioral science consultants covering various aspects of psychology, law, interrogation, and ethics (as interpreted by dod). in Medical education and light of the inadequate knowledge base, the course cannot be considered to attention to ethical principles and conduct meet professional standards. in military detention settings

Ethical principles that provide guidance for physicians in difficult and compli- The role of professional cated circumstances are particularly relevant for physicians in military deten- medical and psychological associations tion settings. A litany of international and national ethical principles have in promoting ethical standards direct bearing on physicians dealing with prisoners of war, interrogation, and torture, but they have not been employed to train military physicians in U.s. the involvement of military and intelligence-agency physicians and other detention facilities. health professionals in the abusive interrogation and mistreatment of detainees the U.s. military’s medical school, the Uniformed services University of the has conflicted with professional ethical principles and standards of conduct that health sciences, currently does not have any stated learning objective that were in place prior to 9/11. remediation will require acceptance of existing pro- directly refers to the role of military physicians in detention settings. the task fessional ethical standards by the military and the adoption of additional ethical Force believes the school should address the ethical questions arising in deten- standards by associations that specifically address all aspects of health profes- tion facilities even though only a small number of its students are deployed to sional involvement in detention center practices. American physicians and psy- detention facilities. After 9/11, the school did develop material on the role of chologists, through their professional associations, must call for and participate physicians in interrogation, but that material failed to make clear that firm, in the remediation. xxviii | Executive Summary Executive Summary | xxix

in the United states, ethical principles for medical practice are produced by cruel, inhuman, or degrading treatment of detainees. Actions should include the two largest medical associations, the American Medical Association and the fostering greater awareness within the health professional community and with American college of Physicians. other U.s. medical associations, totaling more the wider public of what happened and why; refining ethical principles to cover than 100, adopt those principles or modify them for particular subspecialties. all known aspects of health professional participation; professional and public Many of the principles originate from and are in accord with those developed education; fact-finding and investigations wherever helpful; supporting by the World Medical Association, whose members are national medical associ- stronger disciplinary action through state health professional licensing boards; ations like the American Medical Association. before 9/11, the World Medical and, in the future, when operational standards and policies are in accord with Association, as well as the American Medical Association and American college professional ethical principles, taking internal organizational actions against of Physicians, had well-established ethical principles regarding torture: the member violators of ethical principles and guidance. World Medical Association set forth principles in 1975 indicating that physi- linking military and intelligence health professionals to civilian accounta- cians should not participate in, be present during, monitor, or provide medical bility mechanisms should be the goal of all concerned—including the military information to facilitate torture. the American Medical Association’s 1999 eth- and the ciA. Professional medical associations should be key participants in a ical principles had similar prohibitions, as did the American college of system of accountability that also involves the dod and civilian agencies dealing Physicians’ 1995 policy statement. with credentialing and fitness-to-practice assessments, including medical When the involvement of physicians and health professionals in interroga- licensing agencies and specialty certifying boards. similar mechanisms of tion and mistreatment of detainees became known, the American Medical accountability should be instituted for psychologists. Association and American college of Physicians, along with the American Psychiatric Association, responded with protests and refinement of their ethical principles. between 2006 and 2008, they specifically prohibited direct medical Accountability for health professionals involvement in interrogations and the provision of detainee medical informa- through state licensing tion to interrogators, and imposed duties to report mistreatment. the American Psychological Association, however, adopted in 2005 the con- Military and intelligence health professionals who are involved in torture or clusions of its Presidential task Force on Psychological Ethics and national cruel, inhuman, or degrading treatment of detainees should be accountable to security, which reaffirmed the association’s prohibition against torture and the same fitness-to-practice, civilian disciplinary system as all other health pro- cruel, inhuman, or degrading treatment, but also stated that psychologists serv- fessionals. that system includes sanctions related to professional licensure, a ing in “consultative roles to interrogation and information-gathering processes process that is under the authority of individual states and exercised through for national security–related purposes” were engaged in actions consistent with state boards of professional conduct. ideally, such state proceedings should be its ethics code. this position was met with severe criticism both within and out- part of a system of accountability involving the military or other employing fed- side the organization. in 2007, the association identified interrogation methods eral agency, state licensing agencies, professional medical associations, and spe- it considered to be torture, and in 2008, the membership pushed for and passed cialty certifying boards. a referendum affirming that psychologists may not work where persons are held the military and the ciA should establish policies and procedures in accord in violation of international law or the U.s. constitution unless they work for with professional medical ethical standards and assess the performance of the detainee or for the protection of human rights. still, the association policy health professionals using those policies. violations and judgments against mil- permits psychologists to participate directly in interrogation. the task Force itary and intelligence health professionals should result in reviews by civilian- believes the association should change that stance in keeping with the standards based processes, since military and intelligence physicians and psychologists of medical associations that prohibit direct participation in interrogation. are, nonetheless, U.s. physicians and psychologists, regardless of the setting in the task Force holds that medical and psychological associations should play which they render their services. a central role in remediation of the circumstances and policies that directed the As of the publication of this report, state licensing and disciplinary boards participation of military and intelligence health professionals in torture and in Alabama, california, georgia, louisiana, new York, ohio, and texas have xxx | Executive Summary received—and dismissed—complaints against health professionals for alleged Findings and mistreatment of detainees at guantánamo and secret ciA detention centers. to the knowledge of the task Force, none of these complaints has led to a formal Recommendations hearing that then led to a decision holding the individual to account. Many of the complaints were dismissed on procedural grounds. the boards rarely explained the bases for these decisions, but together they suggest an unwillingness of state licensing bodies to address complaints of misconduct within national security agencies or a belief by the boards that they are unable to pursue them. they also reveal procedural and substantive deficiencies in the way state boards approach discipline of health professionals alleged to have been complicit in torture or other forms of cruel, inhuman, or degrading treatment. these practices and pro- cedures contribute to a lack of disciplinary accountability for unethical acts of WE EMPhAsiZE hErE And ElsEWhErE in this report that the task Force’s severe harm on detainees. findings are based on an incomplete record, as many key documents, including states’ non-enforcement of ethical obligations comes at a great cost, under- interrogation records, medical files, and internal instructions, have not been mining professional standards, eroding public trust, and undercutting deter- publicly released. rence of future misconduct. lack of consistent enforcement also compromises the protection of health professionals who face dod and ciA pressure to violate their ethical obligations. by contrast, disciplinary accountability signals to Finding 1. Information gleaned from official documents and witnesses, investigations con- licensees and those who employ them that the profession and institutions ducted by journalists and human rights organizations, and publicly available physical and designed to ensure adherence to ethical obligations take violations seriously. mental examinations of current prisoners and released prisoners has revealed the systematic Moreover, it empowers health professionals to resist demands by authorities to use of torture and cruel, inhuman, or degrading treatment against terrorist suspects detained engage in acts that violate their professional responsibilities and to report abuse by U.S. authorities outside the United States. Military and intelligence physicians and psychol- when they believe it has occurred. ogists participated in these abuses. The record of these practices remains fragmentary, how- the task Force proposes reforms in state policies that would specifically ever, and a full and transparent investigation is needed to reveal all that occurred. identify health professional abuse of detainees as misconduct under the law and improve the procedures necessary to effectively prosecute that misconduct. Recommendation: The president of the United States should order a comprehensive investigation of U.S. practices in connection with the detention of suspected terror- ists following 9/11 and report the results to Congress and the American people. The investigation should include inquiry into the circumstances, roles, and conduct of health professionals in designing, participating in, and enabling torture or cruel, inhuman, or degrading treatment of detainees in interrogation and confinement settings and why there were few if any known reports by health professionals. In addition, the Senate Intelligence Committee should release its report on the role of the CIA in torture after redactions needed to protect legitimate secrets. • The president should instruct current military and intelligence personnel with knowledge of the facts, including contract employees, to cooperate substantively with the investigation. Further, the president should compel the testimony of individuals previously employed by or under contract with military or intelligence agencies. xxxii | Ethics AbAndonEd Findings and Recommendations | xxxiii

• The investigation should include substantive interviews with and medical Finding 3. The DoD and CIA required physicians, psychologists, and other health profes- examinations of detainees released from or still in U.S. custody, subject to sionals to act contrary to their professional obligations. These obligations include refraining their consent. The interviews should include guarantees of no reprisal. from harming individuals with whom they interact in their professional capacities, main- taining confidences, being transparent about their professional roles, and exercising inde- • Where supported by the investigation’s findings, the report should include pendent professional judgment. The agencies inappropriately held health professionals to an acknowledgment of acts of torture or cruel, inhuman, or degrading ethical standards contrary to professional ethical principles. They also equated compliance treatment committed against detainees in U.S. custody, and the damage with professional ethical standards with conformance to the far lower standards of crimi- done to their health, families, and social relationships. nal law; excused violations of ethical standards by inappropriately characterizing health • The investigation should review all relevant CIA and military records, professionals engaged in interrogation as “safety officers”; implemented rules that under- including detainee medical records and interrogation logs. mined the ethical requirement of confidentiality for detainee medical information; required physicians and nurses to forego proper medical judgment to force-feed competent • The president should declassify as much information contained in the detainees engaged in hunger strikes; and improperly designated licensed health profes- investigation’s report as possible, except when there are compelling sionals using professional skills in interrogation as combatants, a status incompatible with national security reasons for retaining classification. This should include their licensing. removal of redactions in previously released documents under the same Since 2006, the DoD has enacted reforms promoting professionalism in the clinical standard. treatment of prisoners, and it recently instituted a medical advisory committee to review ethics concerns in the treatment of prisoners at Guantánamo, but it continues to uphold policies that undermine standards of professional conduct in the context of interrogation, Finding 2. The president has issued an executive order prohibiting the use of torture and response to hunger strikes, and reporting abuse. other forms of cruel, inhuman, or degrading treatment, and has repudiated Justice Department legal memoranda authorizing its use. However, the Army Field Manual on Recommendation: The DoD and CIA should ensure that health professionals in Human Intelligence Collector Operations, which binds both military and CIA interrogators, detention centers adhere to the ethical principles of their professions. permits methods of interrogation that are recognized under international law as forms of • The DoD and CIA should adopt standards of conduct for health professionals torture or cruel, inhuman, or degrading treatment. Such methods include sleep depriva- involved in detainee interaction that conform to those standards of conduct tion, isolation, and exploitation of fear. established by the health professions. These standards include the basic duties of all professionals who employ their professional skills, regardless of Recommendation: The United States should end authorization of the use of role, to avoid harm, to uphold transparency and honesty, to protect interrogation methods that amount to torture or cruel, inhuman, or degrading confidentiality, and to respect detainee autonomy in responding to hunger treatment or punishment. strikes. The agencies should affirm the duties of health professionals to • The president should issue an executive order specifically prohibiting the use report coercive and abusive practices to authorities; refrain from conducting, of sleep deprivation, isolation, exploitation of fear, and other interrogation being present during, monitoring, or otherwise participating in methods that violate international standards regarding torture and other interrogations, including developing or evaluating individual interrogation forms of cruel, inhuman, and degrading treatment. The Department of strategies; and refrain from providing medical information to interrogators Defense (DoD) should revise its Army Field Manual on Human Intelligence or advising on conditions of confinement that advance interrogation. Collector Operations in accordance with the new executive order. • The DoD should no longer classify military health professionals who use • The United States should accede to the Optional Protocol to the Convention their professional skills in their job as combatants. It should rescind all Against Torture, which requires the creation of an independent domestic guidelines, instructions, and other policies that explicitly or implicitly state monitoring body for the purpose of preventing torture against individuals the contrary. in custody. xxxiv | Ethics AbAndonEd Findings and Recommendations | xxxv

• The DoD and CIA should prohibit the use of information obtained from their independent medical judgment in assessing detainee competence to medical or psychological treatment or assessments from being shared make decisions; directly or indirectly with military or intelligence agency interrogators or • maintenance of confidentiality between detainees and physicians; used in interrogation. The agencies should rescind all guidelines, instruc- tions, and other policies that explicitly or implicitly state the contrary. • provision of advice to detainees that is consistent with professional ethics Consistent with international and domestic ethical standards, medical and standards; examinations to determine whether an individual should not be interro- • prohibition of force-feeding and the use of physical restraints; gated or to treat conditions that arise during interrogation would not be affected by this standard. • access to independent medical advice when detainees request it;

• To ensure reporting abuse by health professionals, the DoD and CIA should • training of health professionals deployed to detention facilities in the establish mechanisms for investigating and reporting abuse that are ethical management of hunger strikes in accordance with the Declaration consistent with international standards. of Malta;

• institution of informed refusal and advance directives so that detainees can express their intent regarding feeding; Finding 4. In responding to hunger strikes by detainees, the DoD has failed to adhere to the requirements of the World Medical Association’s Declaration of Malta, which • development of policies and protocols for alternative means of resolving calls upon physicians to evaluate, support, counsel, and meet the needs of the com- detainee grievances. petent and voluntary hunger striker, including respecting the striker’s refusal to eat. The DoD should rescind all policies, protocols, and instructions to the contrary. The American Medical Association has also taken a strong position against forced feeding of hunger strikers. The DoD has engaged physicians and nurses in the force- feeding of hunger strikers in violation of professional ethical standards. It has also Finding 5. The military system of quality assurance, credential review, and discipline of engaged them in using physical restraints in the process of force-feeding, which military health professionals fails to ensure that health professionals who engage in abuse depending on individual circumstances amounts to either torture or inhuman and of individuals in custody or do not provide competent treatment to abused detainees are degrading treatment. In some cases force-feeding with the use of physical restraints held accountable for their acts. has lasted for months at a time and in a few cases for years. The decision to force-feed is a command decision, thereby preventing physician independence and autonomy. In Recommendation: The DoD quality assurance system, including the Medical many cases, officials began force-feedings before the detainee was at any health risk Quality Assurance program and Clinical Quality Management in the Military from not eating. The process of force-feeding requires nurses to act in a manner that Health System, should include measures of compliance with professional precludes their using independent judgment and responding to the needs of the standards of detainee treatment. These measures should include adequacy detainee subjected to force-feeding. and appropriateness of clinical diagnosis, treatment, and documentation; confidentiality of information; and refraining from abuse as well as reporting Recommendation: The DoD should establish policies, procedures, and standards abuse of detainees. Measures of compliance should be revised periodically of care that are in keeping with established professional ethical standards to reflect changes in ethical principles established by the health professional regarding detainees engaged in hunger strikes. associations. Violations should be reported to the National Practitioner Data The DoD’s guidelines for hunger strikes should include: Bank, the Federation of State Medical Boards, and the Association of State • explicit affirmation that health professionals who evaluate and advise and Provincial Psychology Boards, which should share relevant information detainees engaged in hunger strikes should follow the standards of the with state licensing boards, specialty certification boards, and medical associa- World Medical Association’s Declaration of Malta, including the use of tions for appropriate action. xxxvi | Ethics AbAndonEd Findings and Recommendations | xxxvii

Finding 6. In response to the revelation of health professional participation in detainee standards regarding participation in interrogation that follow the standards abuse, medical associations have properly clarified ethical standards to affirm that physi- adopted by medical associations. cians should not participate in interrogation or any practices related to interrogation, tor- ture, or abuse. In addition, the American Medical Association has affirmed the World Medical Association’s stance that physicians should not force-feed hunger strikers. Finding 7. Licensure by a state agency or board is a condition of employment for military However, additional clarification and elaboration of standards is necessary, as are proactive physicians and psychologists, and should be a requirement for intelligence agency physi- steps to ensure the United States’ adherence to ethical standards regarding interrogation cians and psychologists as well. State agencies retain the authority and responsibility to dis- and conditions of detention, treatment of detainees, and proper medical management of cipline licensed health professionals who have engaged in professional misconduct, which hunger strikers, including prohibitions of force-feeding. The American Psychological under the laws governing professional conduct applies to abuse of detainees. Licensing Association, while reaffirming its opposition to torture, has inappropriately continued to and disciplinary boards have dismissed all cases brought against health professionals for affirm the propriety of psychologists participating in interrogation. involvement in detainee abuse, most on procedural grounds or by substantive decisions inconsistent with the obligations of health professionals as required by law. Recommendation: Professional medical associations and the American Psychological Association should strengthen their ethical standards regarding Recommendation: Through legislation and other appropriate mechanisms, states interrogation and detention of detainees and take proactive steps to foster should make explicit that supporting interrogation and participating in torture compliance with those standards. or cruel, inhuman, or degrading treatment are forms of sanctionable misconduct The American Medical Association, American College of Physicians, and the by licensed health professionals. State licensing boards, as appropriate under American Psychological Association should: state law, should establish adequate procedures for fair investigation and adjudi- • develop, distribute, and promote further refinements in ethical principles cation of complaints about abuse of prisoners and detainees. Congress should regarding interaction with prisoners and detainees, including roles in support the ability of states to discipline members of U.S. military and intelli- interrogation, conditions of confinement, abuse reporting, confidentiality gence agencies who engage in . of detainee medical records, and treatment of detainees including hunger State law should provide the following: strikers; • Professional misconduct includes (a) participation or complicity in torture and other forms of cruel, inhuman, or degrading treatment of a prisoner; • reaffirm adherence to professional ethical standards in military detention (b) violations of professional norms in connection with interrogation, settings by issuing policy and position statements, speaking out, and including any form of participation in, or sharing of medical information providing professional and public education programs; regarding, an interrogation; and (c) use of professional expertise to advise • conduct fact-finding investigations regarding the involvement of physicians on a prisoner’s conditions of confinement in a manner that impairs the and psychologists in incidents of torture and other forms of cruel, inhuman, well-being of the prisoner. or degrading treatment of detainees in military detention settings; • Health professionals have a duty to report incidents of suspected torture • take disciplinary action against members who have violated standards of or abuse of prisoners to the appropriate authorities and failure to do so professional conduct; constitutes misconduct. Individuals who provide good-faith reports of torture or abuse to state disciplinary boards will be protected from reprisals. • support state legislation to strengthen the authority of licensing boards to discipline health professionals who engage in torture. • Disciplinary boards have jurisdiction to investigate and prosecute licensees for misconduct regardless of the location, timing, or circumstances of the The American Psychological Association should repudiate the report of its misconduct. Disciplinary boards must (a) investigate non-frivolous complaints Presidential Task Force on Psychological Ethics and National Security that of prisoner abuse, (b) prima facie charge the licensee when it finds probable condones the participation of psychologists in interrogation and adopt ethical cause of a violation, (c) articulate specific reasons for dismissal of a complaint xxxviii | Ethics AbAndonEd Findings and Recommendations | xxxix

alleging prisoner abuse and inform the complainant of the nature and scope the Health Professions Scholarship Program, as well as to all medical of its investigation, and (d) formally prosecute complaints of prisoner abuse residents who will serve in the military. in hearings that afford the complainant opportunity to testify and call • Health professionals assigned to military detention centers should receive witnesses. Disciplinary boards have the authority to subpoena evidence and direct, not online, pre-deployment training in the human rights of prisoners compel witnesses in cases involving prisoner abuse. and the ethical obligations of health professionals in these settings. • Judicial review of a disciplinary board decision to dismiss a complaint • A special section on dual loyalty, including relevant ethical tensions and involving prisoner abuse is available to a complainant. means for addressing them, should be added to the specialty board exams • Misconduct complaints based on prisoner abuse cannot be time-barred. of physicians who will serve in the military.

The DoD and CIA should cooperate with state licensing and disciplinary boards in cases where detainee abuse is alleged. Congress should support the state disciplinary process in cases involving abuse of detainees by mandating cooperation by the DoD and CIA as well as providing financial resources to and sharing relevant evidence with state disciplinary and licensing boards.

Finding 8. The military’s medical education programs and pre-deployment trainings lack transparency and fail to provide military health professionals with the skills and ethical grounding necessary to ensure that they protect the human rights of detainees. Curricula on medical participation in torture do not reflect the requirements of law or ethics.

Recommendation: The DoD should reform education and training of military health professionals to ensure compliance with professional ethical responsibilities toward detainees. It should require that medical schools (including the Uniformed Services University of the Health Sciences), military graduate education programs, officer training schools, and military deployment training programs certify health professionals’ knowledge of professional ethical principles regarding treatment of detainees. • The U.S. military should provide ethics and human rights training for military physicians at its medical school, in basic officer training, and in pre-deployment training. That training should include review of the role of health professionals in preventing, documenting, and reporting human rights abuses. It should also include review of relevant codes, opinions, and policies of major medical organizations. The trainings should be as transparent as possible.

• Training in ethics and human rights applicable to military service should be mandatory for medical students at civilian universities who participate in Introduction

EvErYonE concErnEd With thE intEgritY of medical professionalism and respect for human rights considers physician participation in the interroga- tion and torture of prisoners to be a violation of medical ethics and international conventions. Medical oaths and international declarations unambiguously con- demn and prohibit such behavior. nevertheless, in the aftermath of 9/11, these violations occurred at the detention camps in Abu ghraib, guantánamo, and elsewhere. how did physicians and other health professionals come to partici- pate in these activities? Why were accepted principles and codes ignored? What can we learn from these events to prevent future occurrences? these are the cen- tral questions this report addresses. Although the significance of these questions is, we hope, self-evident, they are by no means simple to answer. Probably the most enduring statement governing physician conduct is the hippocratic oath. recited in varying versions by many American students when they enter and graduate from medical school, it contains the well-known and ever-relevant injunction to protect patients from “harm and injustice,” or in its more popular formulation, to do no harm. it also includes injunctions to pro- tect patient confidentiality and to not take advantage of vulnerable patients. the oath declares: “Whatever houses i may visit, i will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves.” that it specifically mentions slaves, the most vulnerable members of a society that considered them no more than property, makes evident just how distinctive are the ethical obligations of physicians. the principles of medical professionalism continued to evolve after the establishment of the hippocratic oath, but almost always in a manner consis- tent with its values. to be sure, sociologists in the 1960s and 1970s equated pro- fessionalism with guild-like strategies to protect members’ self-interest by lim- 2 | Ethics AbAndonEd Introduction | 3 iting entrance to the ranks. but more recently, the concept of professionalism subject.” indeed, the subject had to be “so situated as to be able to exercise free has received notably positive assessments from a variety of social scientists, pol- power of choice,” and able to terminate participation whenever he wished.1 icy analysts, and leaders of health care institutions and organizations. it serves thus, under no circumstances could investigators use prisoners of war or con- as the basis for defining collective duties, standing out against countervailing centration camp occupants in their research. pressures generated by the marketplace or by state authorities. Patients’ inter- the World War ii experience sparked other pronouncements of principle ests must come first, even if they require financial sacrifices on the part of that had direct relevance to physician conduct. in 1948, the newly created physicians and health care institutions. to claim, as some government officials general Assembly of the United nations issued a Universal declaration of have, that physicians in detention centers are not seeing “patients,” is a brazen human rights.2 its articles addressed a variety of subjects relevant to assuring effort to subvert well-established principles. Physicians’ professional responsi- human rights: governments were not to abridge the “right to life, liberty and bilities do not vary setting to setting and must supersede demands made by the security of person” as well as freedom from “arbitrary arrest, detention or state, even if that might mean less access to information considered vital to exile,” and the right to “seek and enjoy…asylum from prosecution.” the dec- national security. laration also explicitly prohibited torture and other abuses: “no one shall be Put succinctly, the tenets of medical professionalism proscribe physicians subjected to torture or to cruel, inhuman, or degrading treatment or punish- from doing harm to any patients, from taking advantage of their vulnerability, ment.” the document did not specifically pinpoint physicians, but clearly the and from violating their bodily integrity. these principles apply to military, prohibition would preclude their collaboration in such activities. As the last intelligence, and civilian circumstances, to confined and open settings, and to article (number 30) declared: “nothing in this declaration may be interpret- persons who are combatants or non-combatants. Each of us, as patients and as ed as implying for any state, group or person any right to engage in any activ- persons, has a stake in their being respected and implemented. Psychologists ity or perform any act aimed at the destruction of any of the rights and free- embrace similar principles. doms set forth herein.” As unequivocal as these values are, the record long before 9/11 reveals the year after the Un general Assembly issued the Universal declaration of instances of gross misconduct by physicians and psychologists in response to human rights, plenipotentiaries from almost every country added provisions to state demands. in fact, the misconduct was so gross as to inspire a number of the third geneva convention (originally drafted in 1929) to more fully address international covenants that set standards to prevent recurrence. the treatment of prisoners of war.3 the need for the initiative, as one official of the most notorious abuses by physicians occurred under the nazi regime, the international committee of the red cross (icrc) explained, was “sealed by including the heinous human experiments carried out in concentration camps. the tragedy of the second World War.” the geneva conventions of 1949 were the details are well known through the testimony given before American jurists “intended to fill the gaps in international humanitarian law exposed by con- at the nuremberg doctor’s trial. the brutalities included purposeful exposure flict.”4 Accordingly, governments affirmed that prisoners were to be released of subjects to high altitudes, frigid temperatures, and starvation, all of which and repatriated “without delay after the cessation of active hostilities.” usually led to death. though not as well known because they were not made a regardless of whether individuals in custody are considered prisoners of war, focus of the post–World War ii tokyo military tribunal, Japanese physicians also Article 3 in common to all four geneva conventions specifically prohibited carried out horrific medical experiments on chinese prisoners. “murder of all kinds, mutilation, torture, cruel, humiliating and degrading treat- the nuremberg doctor’s trial triggered both the punishment of the nazi ment…of all persons in enemy hands,” as well as “outrages upon personal dig- perpetrators (including the execution of seven of them) and the creation of the nity, in particular humiliating and degrading treatment.” nuremberg code to govern medical research. the code was one of the first A commentary issued by the icrc further clarified these terms. torture was efforts to establish universal guidelines for physician conduct outside of clinical “the infliction of suffering…in order to obtain from that person…confessions settings and traditional doctor-patient relationships. At the same time, it set or information.” the aim of the geneva conventions was to protect the “human strict limits on what the state could demand of physicians. regardless of how dignity” of prisoners of war and to “prevent their being brought down to the determined a government was to acquire knowledge that would promote its war level of animals.” Accordingly, governments were prohibited from isolating pris- effort, researchers were required to obtain “the voluntary consent of the human oners from the outside world or from their families. With nuremberg in mind, 4 | Ethics AbAndonEd Introduction | 5 the commentary insisted that physicians were to treat patients “only for thera- one umbrella. the World Medical Association’s first initiatives were to prom- peutic purposes.” “biological experiments, willfully causing great suffering or ulgate both the declaration of geneva (1948), which served as an updated ver- serious injury to body or health,” including torture, inhuman treatment, or sion of the hippocratic oath, and the international code of Medical Ethics death, were to be considered war crimes.5 (1949). the documents declared that physicians must give “complete loyalty” in disregard of these various declarations, physicians on a number of occa- to patients and adhere to the principle of never using “medical knowledge to sions over the ensuing decades directly participated in torture. violations violate human rights and civil liberties, even under threat.” in 1956 (and with occurred in chile and Uruguay during the military dictatorships of the 1970s amendments thereafter), the World Medical Association issued regulations and the 1980s. in chile, blindfolded prisoners who were subjected to various explaining that, “Medical ethics in time of armed conflict is identical to med- forms of torture subsequently reported that persons they thought to be physi- ical ethics in time of peace.” it was determined to be unethical to “weaken the cians periodically examined them. the physicians then informed the torturers physical or mental strength of a human being without therapeutic justifica- whether the prisoners could survive additional abuse. in Uruguay, physicians tion” or to breach medical confidentiality. participated in devising behavior modification programs involving aversive the british–northern irish conflict prompted the World Medical Association to therapy that amounted to torture. Punitive measures would be reduced when elaborate its position. in 1974, the british Medical Association informed the World prisoners became more cooperative with prison authorities. Medical societies Medical Association of suspected involvement of physicians, directly and indirect- in both countries eventually disciplined some of the physicians involved in such ly, in the abusive interrogation of prisoners and asked the organization to initiate a practices. in chile, revulsion against the assistance that some physicians provid- wider discussion. the result, a year later, was the adoption of the declaration of ed to the military dictatorship prompted other medical colleagues to take a lead- tokyo. its general principles echo other conventions: physicians should practice ing role in bringing an end to the dictatorship. medicine “in the service of humanity,” and they are to maintain “the utmost respect other forms of physician involvement in the abusive treatment of detainees for human life” and never use medical knowledge “contrary to the laws of human- took place in the former soviet Union. Psychiatrists certified dissenters as men- ity.” the declaration went on to identify several proscribed behaviors: tally ill so that they could be incarcerated by the state in penal-like settings. in • the doctor shall not countenance, condone, or participate in the practice some cases, dissenters were subjected to electro-convulsive therapy. (there of torture or other forms of cruel, inhuman, or degrading procedures, have been reports that some chinese psychiatrists have also engaged in similar whatever the offense of which the victim is suspect, accused, or guilty, practices.) in a few instances, soviet psychiatrists who protested such abuses and whatever the victim’s beliefs or motives, and in all situations, were themselves imprisoned for their dissent. including armed conflict and civil strife. Although the involvement of physicians in such practices is appalling and violates the fundamental principles of professionalism, it should be noted that • the doctor shall not provide any premises, instruments, substances, or a larger number of physicians often provided pro bono services to treat victims knowledge to facilitate the practice of torture or other forms of cruel, of torture. As one scholar has documented, “some four thousand physicians in inhuman, or degrading treatment or diminish the ability of the victim to thirty countries were engaged in examining victims, running missions to other resist such treatment. countries, and doing research or treatment.”6 Even so, in an era when so many • the doctor shall not be present during any procedure during which physicians have demonstrated their revulsion against cruelty by volunteering torture or other forms of cruel, inhuman, or degrading treatment is used their services to treat victims, some physicians have been complicit in torture. or threatened. With this mixed record in mind, the World Medical Association in 1975 issued its declaration of tokyo: “guidelines for Physicians concerning torture • Where a prisoner refuses nourishment…he or she shall not be fed and other cruel, inhuman or degrading treatment or Punishment in relation artificially. to detention and imprisonment.”7 the World Medical Association itself was founded immediately after World War ii, with the british Medical Association the World Medical Association declaration was not binding on governments spearheading the effort to bring national medical associations together under and could impose no penalties for failure to abide by it, but the pre-eminent 6 | Ethics AbAndonEd Introduction | 7 international medical body had now lent its authority to elevating professional constitution trumped any of the convention’s provisions and adopted a some- medical ethics over state demands. what different definition of torture.) the ratification also prompted congress the Un general Assembly, in 1982, adopted a series of principles on the to criminalize torture committed outside the United states and define torture appropriate role of health professionals, particularly physicians, in the protec- as “an act committed by a person acting under the color of law specifically tion of prisoners and detainees against torture and other cruel, inhuman, or intended to inflict severe physical or mental pain or suffering…upon another degrading treatment. it affirmed the duty of physicians to avoid participation or person within his custody or physical control.”9 the statute went on to define complicity in torture. Principle 3 states: “it is a contravention of medical ethics severe mental pain and suffering as prolonged mental harm caused by or for health personnel, particularly physicians, to be involved in any professional resulting from: relationship with prisoners or detainees the purpose of which is not solely to A. the intentional infliction or threatened infliction of severe physical pain evaluate, protect or improve their physical and mental health.” or suffering; Finally, in 1984, the United nations adopted its convention Against torture and other cruel, inhuman or degrading treatment and Punishment.8 the b. the administration or application, or threatened administration or result of decades of preparatory work, building on but going beyond its 1948 application, of mind-altering substances or other procedures calculated declaration, the international covenant on civil and Political rights, and the to disrupt profoundly the senses or the personality; 1975 declaration on the Protection of All Persons from being subjected to c. the threat of imminent death; torture and other cruel, inhuman or degrading treatment or Punishment, the 33 articles of the convention Against torture focused on official, rather than d. the threat that another person will imminently be subjected to death, individual, behavior. it addressed “pain and suffering…inflicted by or at the severe physical pain or suffering, or the administration or application of instigation of or with the consent or acquiescence of a public official or other mind-altering substances or other procedures calculated to disrupt persons acting in official capacity.” this would patently apply to the behavior of profoundly the senses or personality. physicians in military settings. the convention went on to define torture: “severe pain or suffering whether physical or mental…intentionally inflicted the major U.s. medical associations that produce relevant ethical princi- on a person for such purposes as obtaining…information or a confession, pun- ples—the American Medical Association and the American college of ishing him for an act…or intimidating or coercing him.” the convention also Physicians, as well as the American Psychological Association and the American declared that each state “shall ensure that all acts of torture are offences under Psychiatric Association—followed the World Medical Association’s lead, and its criminal law” and that if it does not extradite a torturer to face prosecution well before 9/11 adopted strong and unequivocal standards against physician in another jurisdiction it shall “submit the case to its competent authorities for participation in torture or other forms of cruel, inhuman, or degrading treat- the purpose of prosecution.” the convention also bans the use of cruel, inhu- ment. this report will establish that as facts about health professionals’ behavior man, or degrading treatment or punishment. emerged, the associations generally strengthened their standards. the convention also urged that “education and information regarding the despite the existence of compelling and comprehensive human rights prin- prohibition against torture [should be] fully included in the training of law ciples, medical professional ethics, and statutory provisions, following the tragic enforcement personnel, civil or military, medical personnel, public officials, events of 9/11 the United states initiated a “war on terror” that involved not and other persons who may be involved in the custody, interrogation or treat- only the invasion of iraq and Afghanistan, but also the indefinite detention of ment of any individual subjected to any form of arrest, detention, or imprison- many hundreds of so-called “unlawful combatants.” in the course of that deten- ment.” Finally, the convention declared that victims of torture should obtain tion, widespread use was made of “enhanced interrogation” techniques includ- redress and compensation, including full rehabilitation. ing waterboarding, wall-slamming, and extreme sleep deprivation. it also in 1988, the United states joined 63 other countries in signing the conven- included other abusive methods not deemed enhanced, such as isolation, reli- tion document, which was then ratified by the U.s. senate in 1994. (the gious and sexual humiliation, threats, inducement of fear, forced nakedness, senate added reservations, declarations, and understandings that the U.s. and hooding. All of these practices clearly violated international, professional, 8 | Ethics AbAndonEd Introduction | 9 and national principles against torture and cruel, inhuman, and degrading treat- a member of the task Force had personal knowledge of facts discussed, but con- ment in detention and interrogation. sistent with an approach that relied on the public record, the report is not based Journalists, human rights groups, congressional committees, and others have on information obtained by any of its members in another capacity. closely investigated the record, but it remains far from complete. regrettably, Additionally, because of the professional roles they play, some members of the the current administration has not adequately investigated what occurred. task Force may have a personal stake in the report’s findings and conclusions; Although there is evidence of involvement of health professionals in these prac- in such instances, we disclose that fact in the discussion. the task Force sought tices, the full extent of the involvement remains unclear. so too, we need to consensus on findings and recommendations. Members agreed to approve the know more about the military and intelligence-agency structural and opera- final product, however, even when they did not agree with every statement and tional components that were instrumental in producing the involvement of recommendation. health professionals, components that may be illuminated by a report of the this report covers four main detention venues: military-run sites in Afghan- senate intelligence committee that at the time of this report has not been pub- istan, military-run sites in iraq, the U.s. military detention facility at guantánamo licly released, even in summary form that avoids disclosure of classified infor- bay, and ciA secret detention facilities (“black sites”). it does not cover post-9/11 mation. Finally, only limited attention has been devoted to devising reforms in detainees held in prisons and other detention facilities within the United states. standards, programs, and practices that would help ensure that health profes- through the process of what was called extraordinary rendition, the United states sionals do not engage in such behavior in the future. also sent individuals for interrogation to third countries that were known to use in an effort to fill these gaps, the institute on Medicine as a Profession torture in the interrogation of detainees. the treatment of detainees held by these (iMAP) and the open society Foundations convened a task force composed of third countries is not covered in the report. legal, human rights, medical, and military experts. the task Force on A note on the terminology used in this report: While the primary focus of the Preserving Medical Professionalism in national security detention centers report is on physicians and psychologists, the task Force is fully alert to the (task Force) met regularly between december 2009 and January 2012. its involvement of other health care professionals. When a document refers to the members authored and reviewed chapters and policy proposals for the group to specific category of medical personnel (e.g., physician or psychologist), this consider. the report that follows represents the task Force’s analyses, findings, report refers to that individual using the same term. in many of the documents, and recommendations. however, no specific occupation is identified. in such cases, we use more gener- the review the task Force has conducted is based on the existing public al terminology, either “health professional,” where the context is clear that it record, including policies, rules, and guidelines from relevant agencies; doc- refers to someone holding a professional license, or “medical personnel,” which uments the government has released under the Freedom of information Act; includes all occupations in the health field, including physicians, psychologists, documents filed in judicial proceedings; reports of human rights organizations, registered nurses, nurse practitioners, physician assistants, corpsmen (U.s. journalists, and scholars; and reports from the icrc that have been leaked and navy or Marine-trained enlisted medical personnel), medics (U.s. Army-enlist- now appear in the public domain. the existing public record is incomplete ed medical personnel), and technicians. in ciA documents, “medical officer” is because many documents released by the department of defense and ciA are frequently used. According to current position descriptions on the ciA’s web- heavily redacted and interrogation logs remain classified. in addition, the task site, a medical officer is a physician,10 but the ciA’s office of Medical services Force did not interview health professionals who were assigned to detention guidelines on medical support for interrogation, which are discussed extensive- facilities. Abuses recounted here could thus represent a fraction of the abuses ly in this report, refer to physician assistants as medical officers as well,11 so the that took place. task Force does not assume that a ciA medical officer involved in interrogation Where gaps in knowledge exist, we note that information is missing and dis- activities is a physician unless the document so specifies. cuss its importance and its potential impact on the issue assessed, as well as the the report opens with a review of the existing record of participation of value of further investigation. We have made every effort to reach conclusions health professionals in torture and cruel, inhuman, and degrading treatment, that are supported by the facts known; we have tried as best we could not to followed by an examination of the organizational structures and policies that reach judgments on the basis of what was likely or probable. in a few instances, led physicians and other health professionals to participate in interrogation and 10 | Ethics AbAndonEd chAPtEr 1 torture. it next explores the compromised role of physicians in the force-feeding The role of health professionals of hunger strikers. the report then examines the ethical and professional train- ing that physicians, both military and civilian, receive. the report goes on to in abuse of prisoners in U.S. custody analyze the role that professional medical and psychological associations have played, and should play, in combating abuses. it devotes special attention to potential disciplinary sanctions that could be imposed by state licensing and disciplinary boards.

in thE Months AFtEr thE AttAcks oF 9/11 and the start of the U.s.-led war in Afghanistan, individuals allegedly associated with the taliban, Al Qaeda, or other groups identified as terrorist were captured by the U.s. military and ciA in Afghanistan, Pakistan, and elsewhere or turned in by individuals seeking bounties.1 intelligence and military officials sought information from these detainees about plans for additional attacks on the United states as well as about the structure and operation of their terrorist networks.2 White house and other U.s. officials believed that these individuals had been trained by al Qaeda in techniques to resist traditional methods of interrogation and, in the service of breaking that resistance, decided to remove existing constraints on the use of highly coercive interrogation methods that were not permitted under existing U.s. laws and regulations.3 in January 2002, the White house counsel released an opinion asserting that the geneva conventions did not apply to detainees in Afghanistan and else- where in U.s. custody. the next month, President bush issued a directive claim- ing that all detainees were “unlawful combatants” who did not qualify as pris- oners of war under the geneva conventions. in september 2002, cofer black, head of the ciA’s counterterrorist center, testified before congress about the change in attitude regarding the pursuit of intelligence from those in custody: “After 9/11, the gloves came off.”4 Although the U.s. military and the ciA differed in their rules, command structures, forms of oversight, and number of detainees encountered, their use of interrogation methods were similar. the military operated large detention facilities, first in Afghanistan, and then in guantánamo and iraq, which all together detained thousands of individuals. by contrast, the ciA selectively interrogated individuals in military custody and operated secret detention cen- ters around the world that it said held a total of 98 “high-value” detainees.5 the 12 | Ethics AbAndonEd The role of health professionals | 13 military and ciA had in common the aim of inducing psychological dislocation man, or degrading treatment. the record of practices by psychologists and and maximizing feelings of vulnerability and helplessness to reduce or elimi- physicians in ciA detention facilities is sparser, as most of the agency’s eviden- nate the detainee’s resistance to yielding information. to achieve these objec- tiary record remains classified. From internal documents, opinions, and reports tives, the military and ciA combined use of long-term isolation, sleep depriva- that have been released, as well as from results of congressional hearings and tion, sustained shackling in awkward positions that stressed limbs and muscles, investigations, international committee of the red cross (icrc) reports, and sensory deprivation, sexual and other forms of humiliation, inducement of fear, detainee accounts, however, it is known that military physicians and other threats to the body and lives of detainees and their families, beatings, exposure health professionals working for the ciA engaged in many of the same kinds of to extreme temperatures, bombardment with loud noise, and in the case of the practices as their U.s. Army counterparts, and in addition participated in the ciA, waterboarding.6 some of these methods were described by the military and design, use, and monitoring of waterboarding.12 ciA medical and psychological the ciA as “enhanced” techniques of interrogation that were subject to legal personnel also contributed significantly to the development of ciA and Justice review by the U.s. department of Justice, but some of the methods, such as sus- department policies and legal justification for the use of abusive interrogation tained shackling, forced nakedness, isolation, sensory deprivation, and threats, methods, including waterboarding.13 were not designated as enhanced and so were not subject to that review. the task Force is concerned with the conduct of health professionals, by Under both domestic and international law (with slight variations in lan- which we mean to include individuals with an academic degree in a health field guage), torture comprises the intentional infliction of severe mental or physi- and who are licensed by a state to practice their profession. Within this group, cal pain or suffering on a person under color of law to gain information or for our principal focus is on physicians and psychologists, as there is almost no other purposes.7 treaties and domestic law also bar the infliction of cruel, information in the public record on the conduct of other health professionals inhuman, or degrading treatment on a person. Many of the methods of inter- (except nurses, who evidently played a role in force-feeding hunger strikers). rogation used by the United states after 9/11 have been recognized as torture there is evidence, however, that non-professional medical personnel who inter- by international bodies responsible for monitoring and preventing the use of acted with detainees also played a role in torture and other forms of cruel, inhu- torture—and by the United states in its critiques of other countries’ human man, or degrading treatment.14 rights record.8 From a medical standpoint, too, the techniques used inflict it is not known how many doctors and psychologists breached their ethical severe mental pain or suffering.9 duties through participation in the planning and practice of torture and other the abusive techniques used by the U.s. represented a major departure from forms of torture or cruel, inhuman, or degrading treatment. Many military pre-existing interrogation rules as set out in the U.s. Army’s field manual on health professionals assigned to clinical rather than intelligence functions likely interrogation—so major that the Fbi reportedly refused to participate in or sup- tried to perform honorably, consistent with ethical standards, in an environ- port military or ciA interrogations that involved the enhanced methods.10 ment of severe human rights violations. through a series of opinions issued in 2002, 2005, and 2007, the department in 2006, the U.s. supreme court determined that common Article 3 of the of Justice reinterpreted the laws prohibiting torture and cruel, inhuman, or geneva conventions, which prohibits any violence and outrages on personal degrading treatment so as to permit the abusive interrogation practices used by dignity, including humiliating or degrading treatment, applies to detainees in the military and ciA. As a result, military and intelligence-agency physicians and U.s custody.15 Further, congress enacted legislation to identify certain forms of psychologists, acting under directives and protocols developed by authorities, interrogation as war crimes. Also in 2006, the bush administration reversed its aided in the design, implementation, and monitoring of torture.11 they did so in policy of forbidding the icrc to visit any of the ciA’s high-value detainees, violation of U.s. criminal laws and international treaty obligations, as well as their granting the icrc access to the detainees it moved from at least some of the professional ethical obligations to refrain from any form of participation in torture secret sites to guantánamo. or using their professional skills to bring about harm to an individual. in addition, in 2006, the Army issued a new field manual on interrogation that the existing record for military detention facilities shows that health profes- repudiated most forms of torture and cruel, inhuman, or degrading treatment sionals’ conduct under directed circumstances included acts of commission as authorized in the post-9/11 period.16 the Field Manual on human intelligence well as acts of acquiescence or failure to act in the face of torture or cruel, inhu- collector operations adopted a “golden rule” standard: if a technique would not 14 | Ethics AbAndonEd The role of health professionals | 15 be considered justified for use on an American soldier in custody of an enemy, it of health professionals and other medical personnel, and portions of which have should not be used on an enemy or suspected enemy of the United states. A direc- been released to the public. in 2005, the Army surgeon general conducted a tive issued in 2012 stated that use of techniques derived from the survival, survey of currently and previously deployed medical personnel at detention Evasion, resistance, Escape (sErE) program for training American soldiers to facilities in iraq, Afghanistan, and at guantánamo, most of which is available resist torture—as described later in this chapter—are prohibited.17 publicly. in 2009, the dod’s inspector general for intelligence conducted a however, in contradiction to that approach, the field manual, as well as the review of allegations of the use of mind-altering drugs for interrogation. At the department of defense (dod) instructions issued at the highest civilian level, ciA, in 2004, the inspector general conducted a review of interrogation prac- continue to authorize the military’s use of isolation (characterized as “separa- tices, and while it briefly considered the roles of medical personnel, it did not tion”), sleep deprivation, and certain other forms of torture or cruel, inhuman, examine them in any depth. or degrading treatment for detainees that the United states does not deem pris- in addition, congress has conducted two investigations: the senate Armed oners of war under the geneva conventions.18 Additionally, the ciA continued services committee issued a report on the origins and conduct of U.s. interro- to seek authorization for its own use of enhanced interrogation methods, gation practices after 9/11, with particular attention to methods derived from including extended sleep deprivation of up to 96 consecutive hours through the the sErE program and the role of behavioral science consultation teams use of forced, shackled standing; limitation of caloric intake to 1,000 calories a (bscts), which are discussed later in this chapter. the senate select day; slaps to the abdomen and face and grabbing the detainee by the face; and committee on intelligence has conducted an investigation resulting in a report whipsawing the detainee so violently that a towel or other collaring device must that is reported to be more than 5,000 pages. As of this writing, the committee be used on the neck to prevent whiplash. contrary to a fair reading of the has not decided whether to release any portions of the report to the public. requirements of common Article 3 of the geneva conventions, the Justice A comprehensive investigation would require interviews with and independ- department opined in the summer of 2007 that the ciA’s enhanced interroga- ent medical examinations of detainees as well as reviews of interrogation logs, tion methods could be used consistently with common Article 3 and U.s. law.19 medical records of detainees, and any memoranda that have yet to be released Upon taking office in January 2009, President obama issued an executive on the treatment and condition of prisoners. order reaffirming the applicability of common Article 3 for all detainees in U.s. According to a department of Justice memorandum issued in July 2007, the custody and specifically overturning the Justice department opinions that the number of detainees in ciA custody numbered 98, 30 of whom had been sub- ciA’s enhanced interrogation methods did not constitute torture or cruel, inhu- jected to enhanced interrogation methods.22 the number of detainees held in man, or degrading treatment or other violations of common Article 3. the exec- military custody, by contrast, likely has exceeded 100,000. As of november 2005, utive order also applied the restrictions of the U.s. Army field manual to the 10 months before the dod repudiated most of its highly coercive interrogation ciA20 and requested the closing of ciA detention facilities. President obama methods, a total of 83,000 individuals had been held in facilities in Afghanistan, also requested a review of practices at guantánamo, which was conducted by iraq, and at guantánamo bay since the U.s.-led invasion of Afghanistan in late Admiral Patrick Walsh in 2009. the review stated that conditions and practices 2001. in november 2005, 14,000 individuals were in custody, most of them in at guantánamo met the requirements of common Article 3 and that practices iraq. of these, more than 5,500 had been held for more than six months and including sensory deprivation, isolation, and excessive use of force and shack- more than 3,800 of them had been held for more than a year.23 ling had ended, although lawyers and nongovernmental organizations familiar between 2002 and 2005, more than 100 detainees died while in U.s. cus- with the treatment of detainees at guantánamo criticized how the investigation tody, including 43 reported homicides.24 was conducted and disputed some of the conclusions.21 Without a full investigation, we cannot know how many of these detained despite this repudiation of torture by the United states since 9/11, there has individuals were subjected to the interrogation methods described in this never been a comprehensive investigation of the role of health professionals in report. it is known that in certain periods, especially between 2001 and 2004, the torture and cruel, inhuman, or degrading treatment of persons in the methods such as isolation, forced nakedness, hooding, humiliation, bombard- nation’s custody. the dod has conducted a number of internal investigations of ment with loud music, stress positions, and sleep deprivation were routine, so military detention practices, some of which examine issues related to the role it is likely that many thousands of people who passed through the detention 16 | Ethics AbAndonEd The role of health professionals | 17 facilities in Afghanistan (between 2001 and 2004) and iraq (in 2003 and 2004), of trauma or performed examinations that were so inadequate as to overlook the as well as the approximately 700 detainees at guantánamo, were subjected to evidence.27 detainees were also subjected to extreme cold, and to degradation these methods for at least some period of their confinement. it is also likely that and humiliation, including forced nakedness and defecation in full view of oth- detainees who were brought to bagram Air base prisons and the kandahar ers. though the cells were very crowded, detainees were forbidden to talk with prison in 2001 and early 2002 were severely beaten and subjected to brutal one another. officials also used constant bright lighting, noise, vision restric- stress positions. tions, deprivation of sleep, and alterations in timing of meals, designed to dis- Without a full investigation, we also cannot determine the number of intelli- rupt detainees’ sense of time.28 gence or military medical and psychological personnel who were present during the torture and cruel, inhuman, or degrading treatment at bagram and these abuses or participated in them in some way. the number of ciA “black sites” kandahar during these early years appears to have been more often ad hoc than was small, but they were spread around the globe and likely had medical person- systematic, and evidence of the role of health professionals in these practices nel at each site. in the military, because the bscts were composed of only three remains fragmentary. At the time, medical services were disorganized and individuals, the total number of individuals who participated over the course of chaotic—theater-level guidance for organizing and providing medical services the past decade is likely to be small. deployments of clinical military personnel to detainees in Afghanistan was not issued until 2004.29 there are indications, tended to be short, but the number of such individuals may be significant. though, that medical personnel were used as adjuncts to interrogation and secu- rity procedures. detainees allege that medical personnel administered humili- ating and painful rectal examinations, purportedly as part of security proce- The onset of torture in Afghanistan dures, and treated detainees for the injuries suffered in beatings and other forms of torture or cruel, inhuman, or degrading treatment.30 given the perva- shortly after the United states attacked Afghanistan in 2001, the U.s. military siveness of detainee abuse, medical personnel were likely aware of the torture began to take people into custody, both in Afghanistan and Pakistan, and estab- or cruel, inhuman, or degrading treatment at bagram and kandahar during this lished detention facilities at bagram Air base and in kandahar, Afghanistan. period. but no procedures for medical personnel to investigate or report that the bagram facility was a converted soviet machine shop in which detainees abuse were in place.31 were held in cages built of barbed wire or corrugated metal; in kandahar, detainees were held in tents, airport buildings, and Quonset huts. the accounts of former guantánamo detainees previously held in The engagement of CIA health professionals Afghanistan in the period of 2001–2002 consistently show that they were sub- in interrogation design, approval, and implementation jected to beatings. these beatings often took place daily, and guards used sticks as well as their fists to hit detainees in the head and genitals as well as on their origins oF ciA tortUrE back, legs, abdomen, and the side of the leg above the knee.25 guards slammed As alleged terrorists were captured in Afghanistan and Pakistan after 9/11, the detainees into walls and used military dogs to intimidate and sometimes bite ciA opened secret detention facilities, so-called black sites, for interrogation. them. some detainees lost teeth from beatings in the head and face. others lost these prisons, operated in nondescript buildings in Europe as well as the consciousness. Especially at the bagram detention facility, people were also sub- Middle East and Asia, housed individuals identified as high-value detainees jected to excruciatingly painful suspensions, sometimes upside down, from the whose custody the United states had not officially acknowledged until barbed wire or ceilings. detainees were handcuffed for weeks or months at a President bush announced their transfer to guantánamo in 2006. their right time, leading to painful musculoskeletal injuries. they were bombarded with under international law to receive visits from the icrc was never respected. loud music and lights were kept on at all times.26 ciA physicians were brought in to provide them with medical care.32 According to a post–Abu ghraib review conducted by Admiral A. t. church, the ciA contracted with psychologist James Mitchell, a former military at least two men died in late 2002 as a result of severe beatings at bagram. trainer in the pre-9/11 sErE program that helped U.s. armed services personnel doctors conducting post-mortem examinations either misrepresented evidence withstand abusive detention and torture (discussed below), to design an inter- 18 | Ethics AbAndonEd The role of health professionals | 19 rogation program. the so-called enhanced interrogation techniques he recom- in Mitchell’s view, these approaches were also consistent with research in mended were designed to disorient detainees, induce hopelessness and depend- the phenomenon of “learned helplessness,” developed by psychologist Martin ence on the interrogator, and lead to a decrease in detainees’ cognitive func- seligman, who conducted research on dogs starting in the 1960s. the research tions.33 his approach was an outgrowth of an extensive program of research dur- demonstrated that physical and emotional abuse, especially in an environment ing the cold War on brainwashing, mind control, and interrogation, including of unpredictability, could induce passivity and dependence to the point where techniques the chinese communists had used during the korean War.34 the animals would accept electric shocks even when they had a chance to resist. the goal of the approach was “to create a state of learned helplessness and in the 1970s and 1980s, seligman expanded the theory of learned helplessness dependence conducive to the collection of intelligence in a predictable, reli- to account for and treat depression in children and adults. his theories were not able, and sustainable manner.”35 the ciA had earlier referred to the approach developed for intelligence gathering, but after 9/11, intelligence officials were as designed to bring about “debility, dependency and dread.” As the ciA intrigued by the idea that they could manipulate the environment, senses, office of Medical services (oMs) later summarized, the goal of the expectations, and anxieties of detainees to get them to talk. seligman was invit- approach was to “psychologically ‘dislocate’ the detainee, maximize his feel- ed to lecture at the sErE school and even after the dod claimed to have abol- ing of vulnerability, and reduce or eliminate his will to resist…efforts to ished the use of torture, the theory of learned helplessness was for a time a obtain critical intelligence.”36 the Justice department further explained the required element of training for psychologists who aided interrogation.42 goals of this interrogation strategy in its 2007 memorandum, issued by the by early 2002, the ciA had decided to use sErE methods for interrogation43 office of legal counsel: “the program is designed to dislodge the detainee’s and sought department of Justice approval for the use of 10 such methods in the expectations about how he will be treated in U.s. custody, to create a situa- interrogation of a man in their custody known as Abu Zubaydah, considered to tion in which he feels that he is not in control, and to establish a relationship be a detainee of importance with substantial information. the purpose of these of dependence on the part of the detainee. Accordingly, the program’s methods, the Justice department lawyers understood, was to “dislocate his intended effect is psychological; it is not intended to extract information expectations regarding the treatment he will receive and encourage him to dis- through the imposition of physical pain.”37 close crucial information.”44 the methods proposed were “attention grasp” the ciA used sensory deprivation, isolation, what it called “self-inflicted (grabbing a detainee’s shirt collar with both hands and quickly pulling the pain” (induced by forcing detainees into stress positions for long periods of time detainee toward the interrogator), “walling” (pushing a detainee into a wall), and thought by the ciA to add the psychological dimension of self-blame), and “facial hold,” “ slap to the face,” confinement in a box that could be as other techniques.38 these practices were originally discussed in the kUbArk small as a coffin, standing the detainee 4–5 feet from a wall and forcing him to manual (1963)39 and were refined 20 years later in the human resource lean against it with his weight supported only by his fingers and without the Exploitation training Manual, an interrogation manual the United states devel- opportunity to move or reposition his hands or feet, stress positions designed to oped for central American military and intelligence organizations.40 induce muscle fatigue, sleep deprivation, cramped confinement with an in the period after 9/11, the ciA consulted with psychologists who were insect,45 and waterboarding. other methods, including isolation, were not con- familiar with these ideas and who had been associated with the military’s sErE sidered to be enhanced methods by the ciA, so approval was assumed. (survival, Evasion, resistance, Escape) program, which was designed after the later, in 2005, the department of Justice issued a memorandum legally justi- korean War to help soldiers withstand torture if captured by forces that did not fying the use of 14 interrogation techniques, including most of the techniques in abide by the geneva conventions. sErE trainees were subjected for limited the 2002 memorandum. the information in the 2005 memorandum is particu- periods to isolation and other forms of sensory deprivation, sleep deprivation, larly revealing since the descriptions and experiences are those of methods actu- stress positions, and waterboarding, among other techniques. Mitchell and ally used on detainees rather than the 2002 memorandum descriptions that were theother sErE psychologists successfully advocated for converting these meth- derived from sErE training experiences with U.s. service personnel. the mem- ods used to defend against torture into interrogation techniques to be used orandum describes the use of nudity, including visibility to female officers against detainees as a way of disorienting them, fostering dependence on the involved in interrogation, “to cause psychological discomfort;”46 “walling” 20– interrogators, and creating a sense of despair.41 30 times consecutively, “to dispel a detainee’s expectation that interrogators will 20 | Ethics AbAndonEd The role of health professionals | 21 not use increasing levels of force;”47 abdominal slaps directed at the abdomen;48 niques for a limited period on willing trainees who could end the process at any stress positions including forcing a standing detainee to lean against a wall with time and detainees who were being held in indefinite detention. nor did they his head while his hands are handcuffed in front of or behind him;49 water as cold comment on the cumulative impact of these methods.56 as 41 degrees doused on the detainee through a nozzle for as long as 20 minutes the studies the psychologists reviewed to support the use of sErE methods (or up to 40 minutes at 50 degrees or 60 minutes at 59 degrees);50 “flicking” on detainees mentioned by the opinion only looked at the immediate and tem- water at the detainee’s face by use of the interrogator’s finger “to instill humilia- porary adverse impact of enhanced techniques. the Justice department never- tion;”51 sleep deprivation for up to 180 hours (more than a week) by forcing a theless concluded that there were no long-term impacts because no inspector detainee to stand with handcuffs attached to the ceiling and legs shackled to the general or congressional inquiries or complaints had been generated about the floor or by shackling him to a small stool;52 and waterboarding through the pour- sErE training program. it also claimed that, in the U.s. navy’s sErE training, ing of water on a cloth over a detainee’s face while inclined head down for up to no on-site psychologists had reported long-term mental health consequences 40 seconds such that “it is difficult—or in some cases not possible” to breathe from its use. the on-site psychologists did not follow up with the service mem- (and if the detainee seeks to turn his head away, allowing the interrogator to use bers, however, and no evidence was cited of assessments of sErE veterans his hands as a dam to prevent the water from running off).53 months or years after completing the training. According to the Justice department opinion, the ciA had also reviewed the JUsticE dEPArtMEnt rEviEW literature on sleep deprivation and found little to be concerned about. it claimed And thE rolE oF hEAlth ProFEssionAls individuals deprived of sleep for 72 hours could still perform “excellently” on A Justice department legal review of the 10 enhanced methods, released in visual-motor tasks and short-term memory tasks; that those individuals who did August 2002, reveals that psychologists played a role in both developing the experience hallucinations typically had prior histories of psychosis; and that the methods and in justifying their use. the review noted that a sErE psychologist lengthy sleep deprivation showed no correlation with psychosis, loosening of “has been involved with the interrogations since they began.”54 the ciA told the thoughts, flattening of emotions, delusions, or paranoid ideas. these conclusions Justice department that it had consulted psychologists involved in the sErE could only have been based on a very selective and biased reading of medical program (as well as other psychologists) and “mental health experts” on poten- studies, studies that in fact document very severe cognitive and physical impacts tial harms from use of the proposed methods. the Justice department office of of sleep deprivation, including increased risk of psychopathology as manifested legal counsel cited these opinions to support its conclusion that the enhanced by hallucinations, depression (including suicidal ideation), and anxiety.57 there methods did not result in severe mental or physical harm to detainees: is no indication in the Justice department document that any other enhanced techniques identified in the opinion, much less other methods that did not qual- You have consulted with interrogation experts, including those with ify as enhanced, such as isolation, were reviewed; there is ample evidence that substantial SERE school experience, consulted with outside psychologists, these, too, significantly impair mental and physical health.58 completed a psychological assessment and reviewed the relevant literature Another role psychologists played was to conduct a psychological evalua- on this topic. Based on this inquiry, you believe that the use of the tion of Zubaydah for the stated purpose of determining whether his particular procedures, including the waterboard, and as a course of conduct [sic] history, culture, or tendencies would make him especially vulnerable to would not result in prolonged mental harm.55 harm.59 the Justice department’s opinion reviewed Zubaydah’s psychological As many sErE staff recognized at the time and as the inspector general of profile at great length and claimed that he had no pre-existing mental health the ciA later acknowledged, however, there were enormous differences condition that would likely contribute to prolonged harm from the use of between the use of sErE techniques in the controlled environment of military enhanced methods. it claimed that he was focused, self-confident, adaptable training and their use in coercive interrogation of “enemy combatants.” sErE under duress, intelligent, and resilient. these traits were cited to claim that was designed to build soldiers’ resistance, not to discover ways to break resist- Zubaydah would not suffer from the use of enhanced techniques: “the health- ance, yet the psychologists who proposed using sErE methods in detainee ier the individual, the less likely that the use of any one procedure or set of interrogation did not remark on the stark differences between using such tech- procedures as a course of conduct will result in prolonged mental harm.”60 it 22 | Ethics AbAndonEd The role of health professionals | 23 concluded that, in Zubaydah’s case, the psychological assessment indicated torture under international and U.s. law. Under those laws, torture is defined as that enhanced methods, including waterboarding, would not lead to severe the deliberate infliction of severe physical or mental pain or suffering. the pain or suffering.61 Justice department defined “severe pain” very narrowly to “extreme acts” that the role of physicians and other medical personnel in the ciA’s use of sErE “are difficult for the individual to endure and [are] of an intensity akin to the methods at the black sites, according to the department of Justice opinion in pain accompanying serious physical injury.”70 the Zubaydah case, was intended to be different, but no less central, than that second, pain or suffering may be relatively brief in duration, but still severe, of psychologists. doctors would be expected to perform medical evaluations of so as to constitute torture. but the Justice department introduced the idea that detainees before interrogation and before transfer to another facility, monitor for mental pain and suffering to constitute torture, it must have long-term con- detainees’ medical condition during certain interrogations, and provide treat- sequences. it found authority for this shift in the federal anti-torture statute, ment to detainees.62 the Justice department opinion suggested that physicians which defines severe mental pain and suffering to be the “prolonged mental should be present to ensure that individuals subjected to enhanced interroga- harm” caused by four practices, including application or threatened application tion did not suffer permanent physical injury or death. At the same time, the of procedures “calculated to disrupt profoundly the senses or the personality.” opinion implicitly recognized the dangers the methods posed by noting that “a congress’ enumeration of specific forms of mental pain and suffering that con- medical expert with sErE experience will be present throughout this phase stitute torture means that no proof of harm, much less long-term harm, is and…the procedures will be stopped if deemed medically necessary to prevent required, but the Justice department interpreted the infliction of mental pain severe mental or physical harm to Zubaydah.”63 or suffering not to amount to torture unless it is shown that the pain or suffering detainee interviews by the icrc are consistent with and add detail to the would be prolonged.71 Justice department opinion. detainees alleged that medical personnel, based on the Justice department opinion on the Zubaydah interrogation provides the their assessments of detainees, instructed interrogators to continue, adjust, or first evidence of what became a central strategy of the ciA and military in stop particular methods.64 khaled sheik Mohammed told the icrc that health addressing ethical questions concerning the role of medical personnel in inter- personnel monitored his oxygen saturation during waterboarding and on several rogation: conflating ethical standards with legal ones. the ethical standard for occasions intervened to stop the procedures.65 Walid Muhammed bin Attash said physicians is to avoid or minimize harm altogether, not just to avoid severe or that while shackled with his hands above his head and his feet on the floor, his even modest harm. Moreover, as explained below, all medical and psychological lower leg was measured daily with a tape measure, apparently for signs of groups had forbidden participation in torture well before the attacks of 9/11. swelling, by a person he assumed was a doctor. At some point the medical person Under American Medical Association ethical standards, the physician shall ordered that he be allowed to sit on the floor, albeit with his hands still shackled “regard responsibility for the patient as paramount.”72 in psychology, too, the above his head.66 Another detainee also described that a medical person inter- obligation is stated simply and firmly. According to the American Psychological vened after a long period of stress standing.67 detainees also confirmed that med- Association’s ethical code, “Psychologists take reasonable steps to avoid harming ical personnel provided medical treatment both for routine health problems and their clients/patients, students, supervisees, research participants, organization- for injuries they received from the interrogation methods. the icrc states that al clients, and others with whom they work, and to minimize harm where it is from the descriptions of care given by the detainees, these medical interventions foreseeable and unavoidable.”73 As will be discussed in greater detail in chapter were appropriate and satisfactory.68 the detainees also reported that they 2, the substitution of a legal standard for a medical one by the military and ciA received medical examinations prior to and after transfer to a different facility. served to reassure medical personnel that because government lawyers had notably, one detainee reported that one of the medical personnel had told him determined that all the practices were legal, their participation was acceptable. that medical care would be contingent on his cooperation.69 the role of physicians at ciA sites, then, was not to prevent pain, suffering, thE oFFicE oF MEdicAl sErvicEs or harm to the detainee, but only to avoid severe harm. there are two notewor- And ExPAnsion oF thE rolE oF hEAlth ProFEssionAls thy aspects of this shift, one regarding the concept of severity and another con- the role of ciA medical personnel in enhanced interrogation expanded in 2003.74 cerning duration. the concept of severity derives from the legal definition of having received internal complaints that ciA personnel were using unauthorized 24 | Ethics AbAndonEd The role of health professionals | 25 techniques and were violating the human rights of detainees, the ciA inspector loss of consciousness. the oMs advised that an unresponsive subject must be general conducted an investigation of the interrogation program early that year.75 righted immediately and a thrust just below the breastbone administered by the in the course of that investigation, the ciA’s oMs complained that it had been interrogator. the guidelines further stated: “if this fails to restore normal neither consulted nor involved in the analysis of the risks of enhanced interroga- breathing, aggressive medical intervention is required. Any subject who has tion methods. the oMs also contended that the expertise of sErE psychologists reached this degree of compromise is not considered an appropriate candidate on enhanced interrogation techniques was “exaggerated” and that their expertise for the waterboard, and the physician on the scene cannot concur in the further on the use of waterboarding was “misrepresented.”76 the oMs told the inspector use of the waterboard without c/oMs consultation and approval.”81 the Justice general that there was “no a priori reason to believe that applying the waterboard department deemed the presence of medical and psychological personnel dur- with the frequency and intensity with which it was used by the psychologist/inter- ing waterboarding and certain other enhanced methods to be “critically impor- rogators was either efficacious or medically safe.”77 tant” to its finding that the methods were legal.82 Far from ending the use of waterboarding, however, oMs personnel came to the mechanism of monitoring and oversight by medical personnel is further oversee it, along with many other enhanced interrogation methods. the precise illustrated by their role in sleep deprivation, as described by both the Justice connection between its complaints in early 2003 and its much increased department and the oMs. A 2005 Justice department opinion describes the involvement in the ciA interrogation program remains unclear because so few responsibilities of medical personnel during sleep deprivation as including that agency documents have been released to the public. it is known that by they should be alert to the presence of edema (the abnormal accumulation of september 2003, the oMs had drafted the first of a series of “medical guide- fluid beneath the skin that results in swelling) and other physical or psycholog- lines” for enhanced interrogation. Although heavily redacted, all publicly ical conditions.83 in such cases, another form of sleep deprivation would be released versions of those guidelines (through december 2004) called for used. the oMs recognized that using restraints to force a detainee to stand as extensive oMs oversight of ciA interrogations on the basis that “oMs is a method of sleep deprivation could cause clinically significant edema. it responsible for assessing and monitoring the health of all Agency detainees sub- required medical personnel to conduct frequent physical examinations of a ject to ‘enhanced’ interrogation techniques, and for determining that the detainee kept awake by forced standing.84 it instructed them to stop the forced authorized administration of these techniques would not be expected to cause standing if edema appeared, although shackling could continue in another serious or permanent harm.”78 the draft guidelines reflected the ciA’s replace- form. As the Justice department later explained, if the “professional judgment” ment of the medical professional obligation to avoid imposing any harm that is of medical personnel determined that “clinically significant edema or muscle not related to a therapeutic purpose with an obligation only to prevent “severe” stress” was in place, then “interrogators may use an alternative method of sleep harm. it also adopted the Justice department’s constricted definition of severe deprivation.” in such cases, the detainee would be “shackled to a small stool, mental pain and suffering. effective for supporting his weight, but of insufficient width for him to keep his the oMs described its responsibilities as including medical intake evalua- balance during rest.”85 the Justice department also noted that medical person- tion, ongoing medical treatment, diet monitoring, and regular monitoring of a nel were also instructed to intervene if the detainee began to exhibit significant detainee’s condition during enhanced interrogation for indications of signifi- impairment of mental functioning or suffered hallucinations. cant physical or mental harm.”79 For waterboarding, the oMs guidelines As the primary aim of the enhanced interrogation methods was to break the required a medical assessment before more than 15 applications of the method prisoner psychologically, it is not surprising that the oMs guidelines make no within a single 24-hour period. they also provided that a physician should be reference to assessing the possibility of severe psychological harm to the present during waterboarding and that emergency resuscitation equipment and detainee. none of the versions describe any oMs procedures or responsibility medical supplies for performing a tracheotomy (needed in case the person for assessing prisoners medically or psychologically for signs of torture or cruel, could no longer breathe) should be available for detainees subjected to water- inhuman, or degrading treatment. boarding.80 Physicians were permitted to intervene to stop further use of the the oMs guidelines, along with the opinion released in 2005 by the Justice waterboard in the case where a detainee essentially “gave up” from physical department’s office of legal counsel, reveal that by the end of 2003, the oMs fatigue or psychological resignation, resulting in water filling the airways and had assumed a major role not just in clinical oversight but also as a policy advis- 26 | Ethics AbAndonEd The role of health professionals | 27 er to the ciA and the Justice department on the medical consequences of the record the task Force had available, it appears that the oMs’s purpose was not use of enhanced techniques. the oMs reviewed each of the methods used, to assess harm, pain, and suffering, much less to prevent them, but rather to identified potential consequences and risks, and gave opinions on limitations ensure that the limitations it imposed would prevent death or permanent loss that should be imposed on their use. it recognized that the risks of waterboard- of a function like hearing. such a purpose renders comprehensible the oMs dis- ing, for example, included drowning, hypothermia, aspiration pneumonia, and cussion of limits on exposure to cold water or air to a level that would not likely laryngospasm (an uncontrolled or involuntary muscular contraction of the lead to death from hypothermia, identification of decibel levels for noise expo- vocal cords). dousing, with long exposure to cold water or air, could result in sure ostensibly just below levels that would lead to permanent hearing loss, and hypothermia and possibly death. confinement in a box, they said, could lead to means of preventing possible asphyxiation from waterboarding. this purpose deep vein thrombosis.86 nevertheless, oMs physicians advised Justice also explains the absence of medical limitations by the oMs on walling or department lawyers that sleep deprivation did not unduly disrupt the senses or cramped confinement except so as not to exacerbate pre-existing injury. these personality87 and that there exists no “medical reason” to believe that water- methods are extraordinarily painful and can lead to severe mental suffering, but boarding brings about physical pain,88 though in physiological terms, it amounts they are unlikely to lead to death. to drowning.89 According to the Justice department, oMs doctors and psychol- the Justice department’s 2005 opinion relied heavily on the oMs’s med- ogists also advised that the effects of combined use of enhanced interrogation ical opinions to claim that the enhanced techniques used by the ciA, includ- methods would not be different than techniques used individually, and thus ing waterboarding, did not constitute torture or cruel, inhuman, or degrad- would not cause severe pain.90 ing treatment. it also cited the oMs medical opinions as a potential good in setting limitations that should be imposed on the use of the enhanced faith defense by an interrogator if subjected to prosecution.93 by 2007, the methods, the oMs considered how long detainees could be exposed to cold, Justice department took reliance on oMs-style medical clearance a further sleep deprivation, loud noise, lack of nutrition, or stress positions before, in the step by identifying it as one of three key determinations the ciA must make oMs’s judgment, severely adverse effects such as hypothermia, malnutrition, or in each case it wished to employ enhanced interrogation methods. the first permanent hearing loss set in. Exposure was permitted until these very high two determinations it required of the ciA were finding that the detainee was thresholds. the oMs authorized stress positions for up to 48 hours, provided either a member of al Qaeda or possessed critical intelligence of high value the detainee’s hands were no higher than the head, the detainee’s weight was to the United states and that enhanced methods were needed either because borne by the lower extremities, and pre-existing injuries were not aggravated. the detainee was withholding or manipulating intelligence or there was the oMs permitted exposure to temperatures lower than 60 degrees F for no insufficient time to use traditional methods. the third determination was longer than three hours. that “in the professional judgment of qualified medical personnel, there are not only is determining degrees of pain and suffering in various forms of no significant medical or psychological contraindications for their use with interrogation an activity inconsistent with the ethical duty not to participate in that detainee.” 94 harm, but the manner in which the oMs performed this task did not respect the task Force finds that the actions required by medical personnel in the medical evidence and medical literature. the oMs reviews of the methods met ciA—using their medical skills to determine detainees’ fitness for enduring tor- no criteria for scientific or medical assessments. despite a plethora of studies ture, approve and adjust techniques used to perform torture, and monitor the med- that could have been consulted, the reviews were no more grounded in published ical condition of the detainee as torture was taking place—made them participants studies of the impact of the enhanced methods than the psychologists’ claims in in torture. And torture it indeed was, as found by the icrc in its extensive inter- 2002 had been.91 instead of reviewing widely available journal articles on inter- views with detainees who had been held in ciA black sites. it found that detainees ventions such as sleep deprivation and isolation and accounts by individuals who endured “systematic physical and/or psychological cruel, inhuman, or degrading had been subjected to the methods of torture described,92 oMs cited sources like treatment” and the regimen was “clearly designed to undermine human dignity wilderness and survival guides for hypothermia, the ciA counterterrorism and to create a sense of futility by inducing, in many cases, severe physical and center’s own guidelines, and oshA guidelines for decibel levels. mental suffering, with the aim of obtaining compliance and extracting informa- While definitive statements are not possible because of the very limited tion, resulting in exhaustion, depersonalization and .”95 28 | Ethics AbAndonEd The role of health professionals | 29

Engagement of military health professionals Around the same time, military intelligence officials tasked the guantánamo in interrogation and other forms of torture or cruel, bsct, which had been established in June 2002 by the Joint task Force 170, to inhuman, or degrading treatment support intelligence gathering among detainees there, and to propose specific interrogation methods. the first bsct consisted of a psychiatrist, a clinical With the transfer of hundreds of detainees to the guantánamo bay detention psychologist, and a psychological technician, but by the end of 2002 had been facility starting in January 2002, secretary of defense made standardized to include a psychiatrist, a clinical psychologist, and a mental intelligence gathering a priority. in the beginning, interrogation was disorganized health specialist.101 to facilitate their assignment, the bsct members, who had and haphazard, with competing agendas by the ciA, which sought information no experience either with sErE or with interrogation, were sent by the dod about possible future attacks, and the Fbi, which wanted to build cases for crim- to Fort bragg, north carolina, where sErE techniques were used in training. inal prosecution.96 by mid-February, however, the dod set up a new military enti- When the bsct members returned to guantánamo, they were instructed to ty, Joint task Force 170, headed by Army Major general Michael dunlavey, to propose interrogation methods based on sErE. the psychiatrist member of the coordinate interrogation activities at guantánamo. general dunlavey trans- bsct later told the senate Armed services committee that he had expressed formed guantánamo from a prison camp to an interrogation center, even as com- discomfort with the use of sErE techniques on detainees but felt significant manders there began to doubt the intelligence value of the detainees.97 pressure from command to make recommendations for methods that were during the spring of 2002, the dod, as the ciA had done before, looked to highly coercive.102 sErE as a model for interrogation. the dod first applied these methods at the team recommended a three-tier system of progressively harsher interro- guantánamo and, after launching the war in iraq in March 2003, it applied them gation techniques, some of which the bsct psychiatrist later acknowledged the in detention facilities there as well. team “simply made up”103 because of pressure they felt they were under to Early on, general dunlavey sought to enlist the help of psychiatrists and psy- design coercive methods. category one methods were “mildly aversive,” such as chologists to gain information from detainees. by mid-2002, the role of these threatening the detainee that he would never leave guantánamo if he did not health professionals was formalized through what the military called behavioral talk. if these did not induce cooperation, category two methods were recom- science consultation teams, abbreviated bscts and pronounced “biscuits.” mended. these included isolation for 30 days (renewable), stress positions, dep- these units were part of military intelligence, but at times engaged with the rivation of food for 12 hours, back-to-back 20-hour interrogations once a week, ciA as well. behavioral science consultants were part of the teams that interro- hooding, deprivation of religious and comfort items, handcuffing, and forced gated high-value detainees, formerly in ciA custody at the black sites, when grooming. the third category the bsct recommended would be reserved for they were brought to guantánamo in 2010.98 detainees who were suspected of having significant information pertinent to national security and who evidenced what the team called “advanced resist- bEhAviorAl sciEncE consUltAnts ance.” the techniques at this level included daily 20-hour interrogations, strict in december 2001, high-level officials in the dod began requesting information isolation without the right of visitation by medical professionals or the icrc, from the Joint Personnel recovery Agency, which operates the sErE program, food restrictions for 24 hours once a week, scenarios designed to convince the about detainee “exploitation.” by the following spring, the agency briefed dod detainee he might experience a painful or fatal outcome, non-injurious physical officials on how detainees resist exploitation, and the agency’s senior psycholo- consequences, removal of clothing, and exposure to cold air or water until such gist, dr. , proposed interrogation methods based on sErE, including time as the detainee began to shiver.104 sensory deprivation, stress positions, and sleep deprivation.99 As discussions the bsct also proposed additional detention conditions they believed would between the agency and other components of the dod continued, the psycholo- further assist intelligence-gathering operations. these included using fans and gist continued to advocate the use of these sErE methods in interrogation. in the generators to create white noise as a form of psychological pressure; restricting fall of 2002, top lawyers from the dod and White house visited guantánamo “resistant” detainees to no more than four hours of sleep a day; depriving them and also promoted the use of these methods of interrogation, the legal authority of “comfort items” such as sheets, blankets, mattresses, and washcloths; and con- for which had been approved that August by the Justice department.100 trolling their access to the koran. “All aspects of the [detention] environment,” 30 | Ethics AbAndonEd The role of health professionals | 31 they argued, “should enhance capture shock, dislocate expectations, foster interrogation for the detainee’s responses, and provide feedback during the dependence, and support exploitation to the fullest extent possible.”105 interrogation process. the proposal went through reviews up the chain of command. some aspects the full range of methods the bsct developed was first employed at met serious opposition among senior officers and lawyers of the U.s. Army, Air guantánamo in the interrogation of Mohammed al-Qahtani, who was allegedly Force, Marines, and navy,106 but the three-level system and many of the tech- part of the 9/11 hijacking group but had been denied entry to the United states. niques the bsct proposed were approved for general use by secretary rumsfeld in early october 2002, even before all the sErE methods had been approved, in december 2002. those not approved for general use could still be authorized interrogators had already used sleep deprivation, “body placement discomfort,” on a case-by-case basis.107 the bsct’s sErE approach was incorporated in U.s. isolation, frightening dog displays, loud music, and bright lights on al-Qahtani, interrogation strategy that same month in the sErE standard operating none of which yielded intelligence information.110 the following month a new Procedure for guantánamo: and even more abusive interrogation approach was approved for al-Qahtani by the head of intelligence at guantánamo, Major general geoffrey Miller. The interrogation tactics used at U.S. military SERE schools are however, a number of lawyers, Fbi agents, members of the naval criminal appropriate for use in real-world interrogations. These tactics and investigative service, and military officers objected that the approach would be techniques are used at SERE school to ‘break’ SERE detainees. The same ineffective and potentially subject interrogators to criminal prosecution. tactics and techniques can be used to break real detainees during As a result of the objections, the al-Qahtani plan was modified and reviewed interrogation.108 by the dod.111 the final plan, approved in november 2002, included five phases the standard operating procedure described “degradation tactics,” “physi- of interrogation.112 in the first phase, the goal was to induce and exploit the cal debilitation tactics,” “isolation and monopolization of perception tactics,” “stockholm syndrome,” making the detainee completely dependent on the and “demonstrated omnipotence tactics.” Many of these tactics mimic the interrogator. in the second phase, al-Qahtani’s head and beard were to be shaved ciA’s enhanced interrogation methods. degradation tactics included the and gauze placed over his mouth. the third phase involved the use of an inter- “shoulder slap” (hitting the person hard on the back and shoulder with an preter who would pretend he was a detainee in order to elicit information from open hand), the “insult slap” (a slap in the cheek used to “shock and intimi- al-Qahtani. the fourth phase proposed use of the bsct’s “level iii” methods date the detainee”), the “stomach slap” (hitting the abdomen with the back after approval by the secretary of defense. Al-Qahtani was subjected to all of of the hand), and stripping the detainee of all his clothing. stripping was also these third-level methods, including daily 20-hour interrogations, strict isola- supposed to be used to demonstrate “omnipotence.” Physical debilitation tac- tion without the right of visitation by medical professionals or the icrc, food tics included stress positions such as forcing all the detainee’s weight on his restriction for 24 hours once a week, scenarios designed to convince him he fingers while leaning face-forward on a wall; placing weights on outstretched might experience a painful or fatal outcome, non-injurious physical conse- arms while he was forced to kneel on his knees; forcing the detainee’s head quences, removal of clothing, and exposure to cold air or water until such time and torso back while he is kneeling on his knees (called “worship the gods”); as he began to shiver. the goal was persuading al-Qahtani that it was futile to sitting with arms extended horizontally; and standing while extending arms resist. the final phase of the plan was to make a determination as to whether or to the side with light weights on them. isolation and monopolization of per- not to send him to a third country. ception tactics focused on hooding. demonstrated omnipotence tactics despite continual objections from the Fbi, the new round of interrogation included “manhandling,” which was physically pushing or pulling a detainee began in late november, with the head of the bsct present. it involved ele- while he was handcuffed, and “walling,” which was throwing a detainee ments that had not been approved in the revised plan, including use of dogs and against a specially constructed wall.109 stress positions.113 it began with a threat to al-Qahtani that if he did not cooper- the bsct soon became instrumental in implementing the approved meth- ate he would be sent to a third country to be tortured or killed.114 over the ods. According to the standard operating procedure, the bsct role was to assess course of 54 days, interrogators engaged in near-constant, day and night inter- the detainee’s weaknesses, advise interrogators of methods that would help rogation of al-Qahtani for periods exceeding a week at a time, depriving him of exploit those weaknesses, help develop the interrogation plan, monitor the sleep through the use of loud noise, yelling, and demands that he stand. 32 | Ethics AbAndonEd The role of health professionals | 33 interrogators subjected him to many forms of sexual and religious humiliation, obtaining more accurate intelligence information, knowing how to gain doused him with cold water (including when he was naked), employed stress better rapport with detainees, and also knowing when to push or not push positions, used a dog to frighten him, and threatened his family.115 harder in the pursuit of intelligence information.120 According to evidence in a military proceeding, a bsct member was present the interrogators were judged on how much they made use of bscts, as indi- throughout the interrogation and medical personnel monitored him for dehydra- cated by the surgeon general’s report: “during the EAit course, trainee compe- tion and other conditions.116 A bsct psychiatrist who witnessed portions of the tency is evaluated during their planning phase for interrogation and analysis, and interrogation noted that, “the [dog] was never allowed to bite the detainee but failure to interact with the bsct staff is a ‘no-go’ in this process.”121 would be ordered to bark loudly close to the detainee, to sort of sniff or muzzle At the same time, subjection to sErE methods became part of the daily rou- the detainee, to put paws up on the detainee.” the use of the dog was discontin- tine detainees endured. the March 2003 camp delta [guantánamo] standard ued, he reported, “not because anybody objected,” but because the shock value operating Procedures manual reflects the use of coercive and isolating condi- had worn off, “and it just wasn’t felt to be effective anymore.”117 there is no evi- tions of detainee confinement to enhance the effectiveness of interrogation. dence that any of the bsct members formally or informally reported abuse dur- the manual states that “the purpose of the behavior management plan is to ing the course of this interrogation. At the end of the interrogation, Major enhance and exploit the disorientation and disorganization felt by a newly general Miller, who was commander of the guantánamo Joint task Force and arrived detainee in the interrogation process.” to achieve this, the behavior responsible for all intelligence operations there, came to the interrogation room management plan “concentrates on isolating the detainee and fostering depend- to present awards to the individuals engaged in the interrogation.118 ence of the detainee on his interrogator.”122 during the first two weeks, the ongoing dissension within the dod regarding the use of sErE and other detainee was to be denied access to chaplains, the icrc, books, the koran, and methods to break detainees, and internal controversy surrounding the al- prayer caps. After two weeks, the detainee remained in isolation, and the inter- Qahtani interrogation, led secretary rumsfeld to rescind some of the previously rogator determined what contact with others the detainee would be allowed approved interrogation techniques derived from the sErE training methods and also provided prayer beads and a prayer cap. and appoint a working group to review them again. in the wake of their review, the line between clinical and intelligence functions remained fluid for the secretary rumsfeld in April 2003 approved certain techniques, including first year of guantánamo’s operations, but with the establishment of the bscts, dietary manipulation, temperature extremes, sleep “adjustment” (claimed not health professionals began to be assigned to either interrogation activities to be sleep deprivation), and isolation, some of which required a determination (including conditions of confinement to support interrogation) or to clinical of “military necessity.”119 the task Force notes, however, that the treaties and activities. this process of role separation may have been influenced by criticisms laws prohibiting torture allow for no exceptions whatsoever. from health professional and human rights groups after a front-page story in the As bscts became established at U.s. detention facilities, their role came to New York Times in november 2004 revealed the existence of the bscts. the include training interrogators. the Enhanced Analysis and interrogation story discussed the content of an icrc report, written during the summer of training, or EAit, course included advising would-be interrogators on how to 2004, about conditions at guantánamo, including the existence and role of the make use of and interact with bscts in their work. A 2004 review by the Army bscts.123 An article about the bscts in the New England Journal of Medicine early surgeon general of medical roles in detention explained: the following year may have been influential as well.124 The EAIT course emphasizes the need for students to interact with Under the organizational structure that separated health professionals into medical personnel, in particular the BSCT staff; in theaters of operation either interrogation activities or clinical activities, clinicians reported to the this interaction is intended to occur 2–3 times per week at a minimum. base commander and the medical chain of command, whereas bsct members Students are trained about the roles of the BSCT staff, which include: reported to intelligence units, outside the medical chain. in June 2005, the checking the medical history of detainees with a focus on depression, Assistant secretary of defense for health Affairs issued a memorandum formal- delusional behaviors, manifestations of stress, and “what are their buttons.” izing this separation: health care personnel acting as behavioral science consult- Students are also trained that BSCT staff will greatly assist them with: ants were not to provide non-emergency treatment to detainees, and health 34 | Ethics AbAndonEd The role of health professionals | 35 care personnel assigned to treating detainees were not to engage in non-treat- release or continued detention of assessments concerning the likelihood ment-related activities. the memo also limited the ethical obligation “to protect that a detainee will, if released, engage in terrorist, illegal, combatant, or [detainees’] physical and mental health” only to “health care personnel charged similar activities against the interests of the United states128 with the medical care of detainees”; others only had the obligation to adhere to the legal requirement of upholding humane treatment.125 As will be discussed to “ensure that detainees do not obtain the mistaken impression that health in chapter 2, the task Force concludes that this limitation is inconsistent with care personnel engaged in clinical care of detainees are also assisting in interro- the ethical duties of health professionals. gations,” the dod directive stipulated, “[behavioral science consultants] shall the bsct role was further formalized in a dod directive on intelligence not allow themselves to be identified to detainees as health care providers.”129 gathering in november 2005.126 it was then spelled out in greater detail the fol- the June 2006 instruction expressed a preference for psychologists over lowing June in an instruction—policy issued by civilian authority to govern psychiatrists as members of the bscts, noting that, “As a matter of profession- practices by the military services—issued by the Assistant secretary of defense al personnel management, physicians are not ordinarily assigned duties as for health Affairs, that addressed medical roles in detainee operations.127 this [behavioral science consultants], but may be so assigned, with the approval of instruction remains dod policy as of August 2013, though it is reportedly up for [the assistant secretary of defense for health affairs] in circumstances when revision. these directives made clear that psychologists and forensic psychia- qualified psychologists are unable or unavailable to meet critical mission trists had evolved from ad hoc instruments of interrogation to institutional fix- needs.”130 guidance issued from the U.s. Army subsequent to the issuance of tures in the military interrogation process. According to these directives, bscts the instruction nevertheless continued to anticipate the participation of psy- exercised the following functions: chiatrists. the dod has informed the task Force that no psychiatrists are cur- rently serving on bscts. • Making psychological assessments of the character, personality, social because the only guantánamo interrogation log publicly available is that of interactions, and other behavioral characteristics of detainees, including Mohammed al-Qahtani, the task Force only had access to fragmentary informa- interrogation subjects tion on the role bscts played in the interrogation of other individual detainees. • based on such assessments, advising authorized personnel performing the few accounts available, however, show the direct role of behavioral science lawful interrogations and other lawful detainee operations, including consultants in torture and cruel, inhuman, or degrading treatment. intelligence activities and law enforcement in one case, an interrogator filed an abuse report against another interroga- tor who, under the guise of establishing physical control over the detainee, and • Providing advice concerning interrogations of detainees when the with direct involvement of a behavioral science consultant, brought two mili- interrogations are fully in accordance with applicable law and properly tary police officers (MPs) into the interrogation room. the officers pressed their issued interrogation instructions knees into the detainee’s back while holding his arms behind his back and • observing, but not conducting or directing, interrogations slammed him to the floor 25 to 30 times. the MPs and the accused interrogator denied any wrongdoing, claiming that the detainee was only told to stand up • training interrogators in listening and communications techniques and and sit down. According to the behavioral science consultant’s account, the MPs skills and on results of studies and assessments concerning safe and were giving the detainee physical support. A subsequent medical examination effective interrogation methods and potential effects of cultural and showed that the detainee’s forearms and biceps were bruised, a kneecap ethnic characteristics of subjects of interrogation swollen, and his right knee abraded. the behavioral science consultant argued • Advising command authorities on detention facility environment, that the techniques used were effective for a noncompliant detainee because organization, and functions; ways to improve detainee operations; and the interrogator needed to establish dominance and were acceptable because compliance with applicable standards concerning detainee operations the detainee’s head never hit the floor and he was not seriously harmed. After reviewing the evidence, the investigator concluded that the interrogator did • Advising command authorities responsible for determining detainees’ indeed direct the MPs to use force.131 36 | Ethics AbAndonEd The role of health professionals | 37

in the case of an adolescent detainee named Mohamad Jawad, the evidence role in witnessing interrogations that involved the use of dogs, sexual humiliation, showed that while at bagram Air base, Jawad was brutalized, in one instance cov- forced nakedness, and stress positions. he was reported by the senior psychologist ered with a hood, shackled, and shoved down a staircase. At guantánamo, he was as having received “increasing pressure to teach interrogators procedures and tac- subjected to the “frequent flyer” program, designed to keep detainees from sleep- tics that were a challenge to his ethics as a psychologist and moral fiber as a ing, in which he was moved more than 100 times in a two-week period, a practice human being” and as “devastated to have been a part of this.”137 a military judge later found to constitute “abusive conduct and cruel and inhu- despite the energy that went into the creation of the bscts, and their close man treatment.”132 in late 2003, Jawad tried to kill himself by repeatedly banging relationship to the use of sErE methods, bscts remained unique to guantánamo his head against the wall. According to his lawyer, who was able to read interro- until after the Abu ghraib scandal broke in the spring of 2004. in Afghanistan and gation files, one interrogator was sufficiently concerned about Jawad’s mental iraq, however, some psychologists had been assigned to interrogation as their core state to ask a behavioral science consultant for advice. According to the lawyer’s function,138 and a psychiatrist was sent for a month-long assignment as a bsct in affidavit, in response to the interrogator’s request, the consultant conducted a iraq in January 2004.139 psychological assessment, but not for the purpose of treatment. it was instead in 2006, the dod officially repudiated most forms of torture, including “conducted to assist the interrogators in extracting information from Mr. Jawad, reliance on methods derived from sErE.140 since then, however, the bscts even exploiting his mental vulnerabilities to do so.”133 have become ever more embedded in the structure of military interrogation. in addition, the senate Armed services committee noted the case of the most recent U.s. Army guidance on bscts was issued in January 2009 by Mohamadou Walid slahi, who reported hearing voices after having been sub- the Army Medical command and revised in 2012. both versions require that jected to abusive interrogation, including techniques applied to al-Qahtani such behavioral science consultants be licensed psychologists and that forensic psy- as sleep deprivation, shackling, severe humiliation, sensory deprivation and chiatrists either be board certified or otherwise trained by the military. Enlisted overstimulation, temperature extremes, and threats to him and his mother. the non-licensed behavioral science technicians with 10 years of experience in the bsct psychologist brought in to advise the interrogator responded that “senso- mental health field may also be assigned to a bsct under the supervision of a ry deprivation can cause hallucinations, usually visual rather than auditory, but behavioral science consultant. the guidance states that behavioral science con- you never know.... in the dark you create things out of what little you have....”134 sultants’ scope of activities are to be defined by the supervising behavioral there is no evidence that the psychologist intervened in any way to stop the science consultant, which places decisions concerning the scope of the techni- interrogation or to refer the detainee for medical or psychiatric care. cians’ activities in the hands of individual behavioral science consultant psychol- these accounts, though far too small a sample to be considered represen- ogists or psychiatrists rather than establishing those decisions through policy. tative of the thousands of interrogations at guantánamo, are nevertheless the reason for this approach is not explained. Although behavioral science con- consistent with evidence of the significant pressure on behavioral science sultants must be qualified and licensed in their fields, and maintain privileges consultants to devise and accede to interrogation methods that were highly at their parent medical facility, the guidance describes bsct members as com- coercive. A psychiatrist assigned to a bsct told the senate Armed services batants and forbids them from engaging in clinical practice while operating in committee staff that “there was increasing pressure to get ‘tougher’ with their intelligence capacity.141 detainee interrogations but nobody was quite willing to define what ‘tougher’ Although the 2009 and 2012 guidance devote considerable space to describing meant.”135 he noted that “persons here at this [intelligence] operation are still purportedly protective roles, such as to prevent “behavioral drift” by interrogators, interested in pursuing the potential use of more aversive interrogation tech- the core bsct function remains to identify and exploit detainee vulnerabilities niques.”136 he told the staff that he personally felt uncomfortable about the toward obtaining intelligence. one means of achieving this goal is to ensure that techniques he and his team recommended because there was no evidence that the detention environment “maximizes the effectiveness of eliciting accurate, reli- the methods worked and he had concerns that they could be harmful. still, he able, and relevant information during the interrogation and debriefing process- went ahead with the recommendations. es,”142 while “maintaining the safety of all personnel, to include detainees.”143 the According to a former senior bsct psychologist, another young behavioral sci- bsct mandate is as broad: “ensuring that everything that a detainee sees, hears, ence consultant, a psychologist, became angry, exhausted, and depressed by his and experiences is a part of the overall interrogation plan.”144 the guidance deems 38 | Ethics AbAndonEd The role of health professionals | 39 the physical environment to include holding cells, hallways, toilet and bathing provided to detainees was supposed to be “similar” to that provided to facilities, vehicles, and interrogation rooms. bscts also consult with all person- American soldiers, an internal investigation described governing directives as nel, including command, on aspects of the interrogation environment that will “vague” and made no references to the requirement of the geneva assist in detention and interrogation operations, and perform psychological conventions to provide medical care to wounded and sick prisoners under the assessments of personnel for suitability to interaction with detainees. same standard of care applicable to soldiers.150 confusion about the medical Another bsct function, as outlined in the 2009 guidance, is “to provide psy- standard of care due detainees was so pervasive that not a single person chological expertise to assess the individual detainee and his environment and responding to a survey conducted in 2004 by the Army surgeon general was provide recommendations to improve the effectiveness of intelligence interroga- familiar with documents establishing such a standard.151 Further, while an tions, detainee debriefings, and detention facility operations.”145 this includes investigation found a commitment to humane care among health profession- “psychological assessments of the character, personality, social interactions, and als working in Afghanistan detention facilities, “the general circumstance other behavioral characteristics of detainees, including interrogation subjects, they described…make it clear they were not equipped to fully comply with all and, based on such assessments, advise authorized personnel performing lawful doctrinal requirements for detainee medical care.”152 At least through late interrogations and other lawful detainee operations, including intelligence activ- 2004, regular medical checks were not performed and documentation of care ities and law enforcement.” the consultant is supposed to assess the “psychologi- when it did occur was haphazard. cal strengths and vulnerabilities of detainees, and to assist in integrating these fac- in iraq, theater-level policies on medical care for detainees were absent for two tors into a successful interrogation/ debriefing process.”146 bscts are also expect- years after the war started in 2003. directors of combat-support hospital units sta- ed to train interrogators and others in psychological aspects of exploitation, how tioned in iraq, when interviewed in 2004, said that they were instructed to pro- to recognize a detainee’s use of resistance techniques, and similar matters. vide medical care to detainees based on iraqi standards.153 Medical personnel were the most recent revisions to the higher-level dod directive on intelligence not trained in providing medical care for detainees. only in 2005 did the U.s. debriefing, interrogation, and tactical questioning, issued in october 2012, reaf- Army seek to conform to the international standard, which is that detainees are firmed the institutional role of the bsct as an authorized component of intel- entitled to the same standard of medical care applicable to soldiers.154 ligence and interrogation operations, with a restriction only on exploiting the soldiers working in detention facilities in iraq and Afghanistan repeatedly use of detainee phobias during interrogation.147 the latest documentation thus reported acute shortages of basic medical supplies, drugs, and equipment, and clearly shows that bscts have become institutionalized in military intelligence both internal investigations and available records confirm a severely substan- practice, staffed by licensed psychologists and with the availability of forensic dard level of care for detainees and155 haphazard medical recordkeeping.156 psychiatrists, and part of the apparatus of interrogation. shortly after the 2003 U.s. invasion, interrogation methods used at guantá- namo were introduced in iraq,157 set out in a memorandum by lieutenant general clinicAl hEAlth ProFEssionAls richard sanchez.158 the authorized methods (some of which required specific the role of clinical medical personnel in interrogation has typically been command approval) included exposure to extremes of temperature and noise, restricted to medical clearance for interrogation and attending to treatment for dietary manipulation, use of military dogs, isolation, sleep deprivation, and sickness and injuries.148 in some locations, their actions provided direct support stress positions. despite provisions for “safeguards,” including training and for interrogation. command and medical review of plans, there exists overwhelming evidence that from the time of invasion at least through the public revelations of detainee mis- Afghanistan and Iraq treatment in April 2004, torture at Abu ghraib and other locations in iraq was in the first years of the war in Afghanistan, medical services for detainees severe and pervasive. indeed, the severity of authorized techniques spawned the remained chaotic. Prior to the 2001 invasion, no plans had been made for the use of additional methods, including exacerbation of pre-existing injuries, beat- medical care of prisoners, and until 2004 no theater-level policies covered ings, and other forms of sexual assault, and use of electric shock.159 detainee medical care in Afghanistan and iraq.149 Although the level of care no documentary evidence has been found to indicate that any of these addi- tional methods were specifically authorized. nevertheless, an environment of 40 | Ethics AbAndonEd The role of health professionals | 41 pervasive dehumanization, degradation, and infliction of violence on detainees the surgeon general’s survey also indicates that some non-bsct medical no doubt encouraged these more extreme abuses, and they may have been fur- personnel169 were directly involved on an ad hoc basis in interrogation in iraq. ther encouraged by general sanchez’s memo itself, which noted that, “it is the survey reports that 7 of 41 medical personnel who served in level i or ii important that interrogators be provided with reasonable latitude to vary tech- facilities (i.e., field-based medical units, excluding hospitals) in Afghanistan (17 niques depending on the detainee’s culture, strengths, weaknesses, environment, percent) and 48 of 495 of such personnel who served in iraq (10 percent) extent of training in resistance techniques as well as the urgency of obtaining acknowledged being present during an interrogation.170 the survey did not information that the detainee is believed to have.”160 inquire as to what roles they played, nor did it provide a breakdown of which general sanchez’s memo setting out methods of interrogation the U.s. mili- type of medical personnel were present in interrogations. According to the tary command deemed acceptable anticipated a significant role for medical per- report, only a handful of non-bsct medical personnel participated in interro- sonnel in authorizing certain techniques to be used in individual cases. it stated gation, but that finding is misleading as it is based on a definition of participa- that detainees should be medically evaluated as “suitable,” “considering all tech- tion used by the surgeon general that excludes assisting in developing the inter- niques to be used in combination,”161 which would require medical personnel to rogation plan, observing interrogations from inside or outside the interrogation be intimately involved in reviewing each interrogation plan. the memo also room, or being present during an interrogation.171 stated that medical personnel would be expected to specifically review plans the presence of medical personnel in interrogations is confirmed by detainee involving isolation. accounts. some detainees reported instances where medical personnel refused detainee interviews, official accounts, and the Army surgeon general’s survey them treatment during torture or provided medical care and the interrogation confirm that clinical medical personnel were engaged in various aspects of inter- continued. one former detainee told human rights investigators that during his rogation and other security functions in iraq, though the task Force has not seen initial interrogation at baghdad airport someone was present to monitor his any guidance beyond the general statement in general sanchez’s memo to heart and blood pressure. the detainee was suspended in the air, which caused describe their role. the Army surgeon general’s survey, which covered the period his arm to dislocate. he reported that one of the medical personnel put his arm of the most pervasive detainee abuse, from 2002 to 2004, reported that medical back in its place and then informed the interrogators they could continue.172 personnel were required, among other duties, to “perform a variety of detainee A medic (army-non-physician medical technician) who served at both security roles.”162 in Afghanistan, these included rectal and genital examinations guantánamo and Abu ghraib acknowledged participating directly in abuse as for weapons, though these were later discontinued.163 colonel , part of the interrogation process, including intimidating and hog-tying detainees, who commanded the 205th Military intelligence brigade in iraq and was respon- and refusing care to them.173 According to his interview with a journalist: sible for interrogation at Abu ghraib, filed a sworn statement that physicians [He] was asked to attend to the detainees who were being abused. monitored interrogations and psychiatrists signed off on interrogation plans He’d find them dehydrated, wrists bleeding from too-tight handcuffs, involving sleep deprivation.164 ankles severely swollen from forced standing, and with joints dislocated the surgeon general’s survey also found that medical care undertaken in from stress positions. Some had been pepper-sprayed and hit with non- connection with interrogation was not documented consistently, and medical lethal rounds. Andy and other medics used their ambulances and litters personnel were not clear as to whether or not they had the authority to stop an to transport detainees who were too injured to walk to and from interrogation if a detainee required medical care during it.165 Medical personnel interrogation rooms. -174 in iraq acknowledged that medical care was denied or delayed so that interro- gation could continue.166 A non-physician medic reported that optometry care for detainees was contingent on cooperation with—and managed by—inter- Guantánamo rogators.167 According to the report, training in the handling of medical records At guantánamo, the command placed a high priority on clinical care, establishing and for abuse reporting was largely absent. independent clinical assessments of a well-equipped hospital. in addition, medical staff there sought and took advice detainees held in iraq reveal severe physical and mental health deterioration as from the icrc about medical issues.175 Physicians were also brought in from the a result of their detention.168 U.s. centers for disease control and elsewhere to consult on tuberculosis, mental 42 | Ethics AbAndonEd The role of health professionals | 43 health, malaria, and other medical care issues. in a report in 2004, the icrc stat- ultrasound study of a swollen leg reviewed by a radiologist flown in to the naval ed that medical care was generally of good quality. two studies based on inter- base. both were reported to have been normal. he received intravenous fluids, views with former detainees found that while many detainees criticized the avail- including correction of low serum potassium, and was observed at the hospital ability of medical care, a sizable minority of detainees were generally satisfied over the two days with ongoing Ecg (heart) monitoring. After discharge he was with the medical care they received.176 the Army Medical command issued fairly returned to the detention center. Four days later, his heart rate was again noted detailed guidance for detainee medical care in 2005 (and revised it in 2007) that to be low by a corpsman, who called a doctor, and was told to repeat the vital stressed cultural and religious sensitivity, respect for the detainee, and a standard signs in an hour. the repeated heart rate was higher but still slow. this was of medical care equivalent to that offered to American soldiers.177 A report issued reported by the corpsman to the doctor by telephone and, as interpreted and in early 2009 by Admiral Patrick Walsh as part of an overall review of conditions recorded by an interrogator keeping a log, the doctor said to the corpsman that at guantánamo found the medical staff to be professional and dedicated, and that “operations could continue since there had been no significant change…” it care offered was of high quality and determined exclusively on the basis of med- was “noted [that] historically the detainee’s pulse sometimes drops into the 40s ical need.178 that report has been criticized for its methods, including the lack of in the evenings.” there is no way to know from the log if these statements are any independent investigation.179 We address some of the task Force’s concerns the actual words of the doctor on the telephone or if they are those of the corps- about the report later in this chapter and in chapter 3. man and/or the interrogator keeping the log. the log of the interrogation does According to the dod, because of the separation of clinical and intelligence not include any entries indicating whether or not interrogators called in med- functions at guantánamo, physicians and other medical personnel not assigned ical personnel, including the doctors; nor are there entries indicating whether to bscts did not evaluate detainees to ascertain vulnerabilities for use in inter- or not interrogators discussed the detainee’s condition with medical personnel, rogation, consult on interrogation strategy, or observe interrogations for the including the doctors. there are no log entries describing or indicating specific purpose of advancing intelligence. directions by medical personnel regarding the continuation of interrogation Medical personnel including physicians did treat detainees during periods of procedures. the log indicates that the interrogations continued following the interrogation. details of their treatments are described in a previously secret log evaluation of the detainee’s fitness by the physician. of the interrogation of Mohammad al-Qahtani at guantánamo bay (orcon the dod inspector general has confirmed that detainees who experienced log) reported by Time magazine in March 2009.180 According to Time, the dod “serious mental health conditions” and were treated with psychoactive medica- stated that the log was accurate.181 during the interrogation, medical personnel tions were subjected to further interrogation.182 the inspector general’s report attended to numerous medical problems, including efforts to maintain hydra- did not consider whether the psychotic and other severe symptoms in these cases tion and testing for kidney function during attempted hunger strikes that were were themselves the product of interrogation methods used, but Fbi reports and accompanied by the detainee’s intermittent refusals to drink fluids. More than independent evaluations show that to be the case in some instances.183 two-thirds of the visits were provided by non-physician, enlisted personnel the medications given to detainees suffering mental health conditions were (corpsmen and medics). A physician saw al-Qahtani 14 times to attend to a vari- sometimes administered involuntarily, leading some detainees to believe they ety of medical problems and situations needing a physician’s attention and dis- were being drugged for interrogation purposes.184 Although the U.s. supreme cussed al-Qahtani’s condition by phone with corpsmen and gave instructions on court has determined that involuntary medication of prisoners is permissible if it another date. the log notes that on the second day, at 1800 hours, medical per- is in the medical interest of the prisoner and certain procedures are followed,185 sonnel checked vital signs and determined that the detainee needed to be the task Force has not seen any evidence dated before 2006 as to whether or not hydrated. At 1810, the detainee was given two bags of intravenous fluids. At such standards were followed—or indeed whether there were any standards or 1845, the log notes, “Medical doctor arrives to evaluate detainee to ensure he is guidelines for involuntary treatment of detainees at the time. detainee accounts physically able to continue.” there is no way to know from the log if this was the and the inspector general’s report reveal that involuntary treatment with psy- statement of the doctor or the interpretation of the interrogator log keeper. choactive medications was not uncommon.186 in 2006, the Assistant secretary of An episode of bradycardia (low heart rate) required al-Qahtani to be hospi- defense for health Affairs issued an instruction that involuntary treatment must talized for two days, during which he received a ct scan of the head and an be carried out under standards similar to those applied in the Armed Forces.187 44 | Ethics AbAndonEd The role of health professionals | 45

Medical personnel committed many acts of omission, but the most perva- Another study, which consisted of in-depth evaluations of 11 former detainees sive of these acts of omission that the task Force was able to ascertain involve from guantánamo and iraq by experts in the rehabilitation of survivors of tor- mental health. conditions of confinement, absence of due process, uncertain- ture, revealed that all but one suffered serious and enduring anxiety, depression, ty about the possibility of release, restriction on lawyer visits, and use of iso- and post-traumatic stress disorder, often characterized by ongoing nightmares, lation and other forms of psychological manipulation, along with interroga- inability to concentrate, and significant deterioration in social functioning. the tion methods designed explicitly to induce anxiety, stress, and helplessness, evaluators attributed these symptoms to the detainees’ experience in confine- took an enormous toll on detainees’ mental health. Even when the abusive- ment.196 these findings are corroborated by proxy medical examinations197 and ness of interrogation declined in 2006, the ongoing and extensive use of iso- accounts of lawyers who have had contact with detainees who suffer anxiety, lation, which is well-known to lead to severe mental distress and deteriora- depression, and even psychotic symptoms as a result of long-term isolation and tion, along with indefinite detention, continued to severely impact detainees’ other conditions of confinement.198 mental health.188 the dod has discounted the seriousness of the mental health impact of its there is evidence that some individuals experienced what appear to be psy- detention practices. Although it denied that most detainees were being kept in chotic episodes as a result of abuses committed against them. An Fbi agent wit- solitary confinement because they could yell across cells and talk during short nessing a particularly brutal interrogation in late 2002 at guantánamo noted that periods of recreation, a 2008 study found that a majority of detainees were the detainee “was evidencing behavior consistent with extreme psychological locked in their cells for 22 or more hours a day in conditions of deprivation even trauma (talking to non-existent people, reporting hearing voices, crouching in a more draconian than typical in a super-maximum-security prison.199 corner of the cell covered with a sheet for hours on end).”189 independent psychi- Admiral Walsh’s report states that, according to a provider on the behavioral atric evaluations of detainees have also drawn connections between treatment in health unit, in 2009 only eight percent of detainees had symptoms of mental detention and onset of psychotic and other forms of severe mental illness.190 disorders.200 no conclusions about the prevalence of mental disorders among in 2003, the Army surgeon general asked a psychiatric consultant, dr. daryl detainees in 2009 can be made from this statement as it cites no data and it is Matthews, to assess mental health issues at guantánamo after an epidemic of clear from Admiral Walsh’s report that he and his team made no independent 350 acts of self-injury, including 120 “hanging gestures” in a single year.191 in review of the provider’s assertion and did not recommend any such review.201 response, authorities created a special behavioral health unit that conducts eval- the report does not address prevalence at any earlier time. the dod has so far uations and provides supportive psychotherapy, medication management, sui- rejected requests by outside groups to conduct a review of the mental and phys- cide prevention education, and assessments of hunger strikers. detention and ical health of detainees. the task Force believes such a review should be an ele- interrogation practices, however, appear to have overwhelmed the unit’s initia- ment of the comprehensive investigation we recommend. tives. in June 2004, an icrc medical report found the existence of psychologi- the disparity between government reports of mental health among cal torture at guantánamo, resulting in increased incidence of mental illness detainees and the observations of outsiders may be explained in part by diagnos- among detainees.192 tic practices at guantánamo. A study conducted by two members of the task detainee accounts of their incarceration show constant despair and mental Force of medical records obtained by detainees through their lawyers, shows suffering. As of the date of this report, six detainees have reportedly committed evidence that physicians and psychologists did not examine the relationship suicide since guantánamo opened in 2002, although some have questioned between the torture and cruel, inhuman, or degrading treatment detainees whether three of these deaths were homicides.193 Adnan Farhan Abdul latif, were experiencing and their deteriorating mental health.202 some physicians who died at guantánamo in september 2012, has not been classified a suicide, and nurses engaged in clinical care may not have been aware of the interroga- but he had a history of depression and made several prior suicide attempts. he tion practices and conditions of confinement to which some detainees were had been held in solitary confinement, was frequently restrained through the subjected. the medical records available and other evidence suggest that in at use of hand and body cuffs, and had gone on hunger strikes.194 least some cases clinicians failed to inquire into the detention-related sources of one investigation revealed that 18 lawyers for detainees held at guantánamo injuries and distress, and in others, when they did see a connection, failed to reported that their clients’ health seriously deteriorated at the facility.195 take action to stop the abuse. 46 | Ethics AbAndonEd The role of health professionals | 47

the study of available medical records, client affidavits, attorney-client notes, observed that his deterioration seemed exacerbated by his isolation and loneli- and summaries of medical conditions of nine detainees at guantánamo, shows ness, expressed in repeated begging to be housed with someone who spoke his that all of the detainees reported to clinicians that they had been tortured. Many language. on october 28, 2002, the psychiatric staff made a note in the file had been treated for various medical complaints, and in three cases, the detainee about why they could not help with this request: “informed him that psych had had suffered a physical injury—such as contusions, bone fractures, lacerations, no control over that and told him to ask his interrogator to have him moved.”208 peripheral nerve damage, or sciatica—that was consistent with torture. Yet in Under procedures then in place, moreover, a detainee with “psychological none of the cases is there an indication in the medical record of an evaluation of issues preventing his effective assimilation” was ineligible for being housed in a the cause of the injuries. none of the nine detainees had reported a prior psychi- medium-security, communal setting, leading to his placement in a unit where atric history, but in six cases, mental health symptoms including suicidal he would be locked in his cell for 20 hours a day.209 the task Force notes that ideation, depression, or audiovisual hallucinations were serious enough that the responding to “psychological issues” with further isolation can exacerbate the individuals were referred for mental health evaluation. in none of the cases, how- mental health deterioration the detainee suffers. ever, was a diagnosis of post-traumatic stress disorder made by the guantánamo clinicians’ apparent powerlessness to alter the conditions of detainees’ confine- clinician, even though independent reviews found the symptoms were consis- ment extended to physical care. doctors prescribed more exercise for one detainee tent with that diagnosis.203 instead, the detainees were diagnosed with adjust- whose muscles were atrophying, but instead the prisoner was moved to a cell ment disorder, borderline personality disorder, or depression. in some cases the where for 18 months he was kept in isolation and denied exercise.210 officials have symptoms were attributed to the routine stressors of confinement. one detainee insisted that medical care was never denied for intelligence or security reasons, or was told, “You need to relax when guards are being more aggressive.” to induce cooperation, but these and other reports suggest otherwise.211 other reports show that in some cases, senior psychiatrists dismissed the in addition, the quality of medical care available to detainees was compro- idea that conditions at guantánamo could have anything to do with depression mised because of the severe distrust they developed of the medical staff, in part among detainees.204 in still others, detainee reports of abusive interrogation as a result of the involvement of psychologists and psychiatrists in interrogation. were not found reflected in medical records.205 dr. Matthews, the psychiatric separation of clinical and intelligence functions, including the rule that behav- consultant, said he was actively misled by the command about interrogation ioral science consultants could not wear insignia indicating medical status, may and conditions of confinement.206 have seemed to commanders and the civilian leadership to be a means of pre- some medical personnel commented on the consequences of isolation and serving detainees’ willingness to place trust in the medical staff. but many interrogation practices. Moazzem begg, a british detainee held by the U.s. in detainees were not persuaded. they were aware of the participation of psychol- Afghanistan and then in guantánamo until his release in early 2005, reported ogists in interrogation. Many of them suspected, and in some cases had good interactions with a psychiatrist who visited him periodically on account of his reason to believe, that personal information that could only have been obtained depression and severe anxiety attacks, which he attributed to his lengthy time in the course of their medical treatment was obtained by interrogators. in 2004, in solitary confinement. over time he developed a relationship with the psychi- the icrc reported that detainees did not seek mental health care for fear the atrist, and she told him that there were people in the prison who had been information would be passed on to interrogators.212 locked in isolation and lost touch with time, reason, and in some cases, reality. As described in detail in chapter 3, detainees’ trust was also undermined by some started talking to themselves.207 medical supervision of forced feeding to break hunger strikes, which by 2006 Where medical personnel identified severe physical or mental health included routine use of restraint chairs. impacts of interrogation and confinement practices on a detainee, however, detainees’ trust was compromised also by the security functions health they appear to have been powerless to intervene on behalf of their patient professionals performed, including routine body cavity searches and sedation because of policies and practices at guantánamo. in one case, revealed in med- of prisoners for security purposes. the dod has ended health professional ical records and interviews with a former guantánamo detainee, the detainee participation in body cavity searches, but may continue to permit the use of started exhibiting psychotic symptoms and made multiple suicide attempts, sedatives for transport of detainees213 and chemical restraints for security pur- including ingesting two ice packs containing ammonium chloride. clinicians poses.214 the task Force could not determine whether physicians or other 48 | Ethics AbAndonEd The role of health professionals | 49 medical personnel wrote orders for sedatives or whether the administration by health professionals, in addition to the investigation on the use of drugs of medication was protocol-driven. in either case, such practices are incom- for interrogation mentioned earlier, was a survey conducted by the Army patible with ethical standards in the criminal justice context. the American surgeon general in 2004 and 2005 that did not purport to be an investiga- Medical Association’s code of ethics permits court-approved forcible treat- tion. As a result of internal complaints about ciA interrogation practices, as ment of a prisoner only if it is “therapeutically efficacious and is therefore we’ve seen, the ciA inspector general completed a review of interrogation undoubtedly not a form of punishment or solely a mechanism of social con- practices in the agency’s secret detention facilities.219 this report, however, trol.”215 similarly, the national commission on correctional health care, did nothing to restrict the use of forms of torture and cruel, inhuman, or which sets standards for prison and jail medical treatment in the United degrading treatment that had been approved by the department of Justice states, prohibits the use of medication “simply to control behavior,” instead and in fact led to greater involvement of physicians and other health profes- permitting it only in emergencies, to prevent harm “when an inmate is dan- sionals in torture. gerous to self or others due to a medical or mental illness.”216 because of their clinical roles, medical personnel are often in the best position Questions have arisen about the unexplained administration of an anti- to identify instances of abuse. they have opportunities to hear about abuse direct- malaria drug with neuropsychiatric side effects to detainees at guantánamo, ly from detainees in a relatively safe setting and can examine them to ascertain including whether there were intelligence or security reasons rather than med- whether their claims are consistent with medical and psychological signs and ical reasons for doing so.217 As the conduct of a member of the task Force has symptoms. their clinical examinations can also identify the possible existence of been questioned on this subject, the task Force does not address the matter abuse in instances where the detainee is fearful of reporting. Additionally, because here, but urges that the circumstances of the use of mefloquine, including the they have the opportunity to raise concerns, through the surgeon general of their reasons for choosing it, be addressed as part of the full investigation of medical service as well as through the base commander, health professionals have greater practices we recommend. opportunities for protection from the retaliation that other soldiers suffer for the clinical practices at guantánamo, taken together, not only violate pro- reporting abuse.220 this combination of intimate contact with detainees, capacity fessional obligations and domestic and international standards of medical care to assess medical evidence of torture, and relative insulation from the pressures for prisoners and detainees, but may well have compromised the ability of con- on guards and interrogators not to “snitch” on fellow soldiers, should put health scientious doctors, nurses, psychologists, and other medical personnel to pro- professionals in a unique position to protect the human rights of detainees and vide quality care to detainees. these practices may also explain the inconsistent uphold their own ethical obligations. reports of detainees about the medical care they received, with some citing As discussed in chapter 2, military medical personnel, like other soldiers, are treatment by caring staff, and others citing delays and obstruction in receiving required to report violations of the laws of war.221 however, during the period care, apparent indifference to their medical needs, brutality in force-feeding, when the most intense abuses were committed against detainees in guantánamo, and the use of information revealed in the course of medical treatment for inter- iraq, and Afghanistan, from 2001–2004, no rules specifically applicable to abuse rogation purposes. the task Force concludes that intelligence- and security- reporting by military health professionals existed in the military.222 driven practices impeded quality medical care. Medical personnel identifying and reporting abuse was rare in the period before specific instructions were issued on medical personnel reporting. the 2004–2005 surgeon general’s survey of medical personnel who served in Abuse reporting and accountability Afghanistan, iraq, and at guantánamo showed that of 60 medical personnel for health professionals assigned to detention operations in Afghanistan, only one claimed to have observed abuse or had an allegation of abuse reported to him or her.223 seven despite many requests from human rights organizations, to the task Force’s medical personnel interviewed for Admiral church’s 2006 report stated that knowledge, no internal or independent investigation of the conduct of mili- they had seen no detainee abuse.224 At guantánamo, no previously deployed and tary and intelligence agency physicians, psychologists, and other medical only two currently deployed medical personnel surveyed claimed to be aware of personnel have ever been conducted.218 the only specific review of practices any abuse.225 it should be noted that the surgeon general’s report findings do 50 | Ethics AbAndonEd The role of health professionals | 51 not differentiate among the medical personnel who reported, that is, whether during interrogation. An autopsy found broken ribs that could have compro- they were physicians, nurses, medics, or of another occupation. mised respiration. hooding may also have contributed to his death.231 in iraq, 72 medical personnel deployed before the survey was conducted said Military autopsy reports of detainee deaths, conducted by the Armed Forces they had been aware of some form of abuse, and most claimed to have reported institute of Pathology, were generally done professionally, but in many cases the it, but this number represented a very small fraction of the number of deployed pathologist was not supplied with and did not inquire about information ger- health personnel. Moreover, the majority of reports concerned shortages of sup- mane to the circumstances surrounding the detainee’s death. in some cases the plies, not abuse of detainees.226 Where medical records from guantánamo, pathologist also failed to inquire about injuries to bones or ligaments, or Afghanistan, and iraq did contain reported medical evidence of abuse, 70 per- whether had taken place.232 A review of autopsy reports for 29 pris- cent of the cases do not mention any action taken in response.227 oners who died in U.s. custody in iraq or Afghanistan from 2002 to 2005 found in his review of detention operations, completed in early 2005, Admiral that while the reports supported the causes of death cited, they omitted critical church noted that in iraq, medical personnel had access to and knowledge of contextual details, including events and conditions leading to death.233 in one detention operations. the 38 medical personnel he interviewed, including 20 case, a pathologist noted bruises on a prisoner’s abdomen, blood contusions, physicians, however, reported only four abuse incidents, and three of them and free blood in the peritoneum, but the death certificate simply noted that the involved very serious physical injury, one resulting in death and the other two manner of death was undetermined.234 involving broken ribs and severe bruises. the fourth concerned a detainee who since the Abu ghraib dod investigations and the surgeon general’s survey, had been roughed up during transit.228 there has been no data available to the task Force about the extent of abuse the dod investigations and surveys examining prisoner abuse generally take reporting by medical personnel in military detention facilities overseas. As dis- at face value statements by medical personnel that they reported abuse when cussed in chapter 2, however, the task Force has concerns as to whether abuse they saw it. given the high amount of abuse of detainees on record during the reporting procedures put in place by the dod are sufficient to protect the period covered by these reviews—generally from 2001 to early 2005—and the human rights of detainees. paucity of abuse reporting, the task Force finds such claims highly questionable. Even the investigations themselves reveal instances of extremely serious abuse that was not reported. Major general george Fay’s 2004 review of intelligence The impact of torture and cruel, activities relating to abuse of detainees at Abu ghraib, for example, revealed that inhuman, or degrading treatment on detainees medics had not reported abuse in very serious cases, including two instances where detainees were handcuffed uncomfortably to beds for prolonged periods. there is extensive evidence of the immediate and long-term impact of torture in one of the cases the detainee suffered a dislocated shoulder.229 and cruel, inhuman, and degrading treatment inflicted by U.s. military person- Medical personnel also apparently failed to report abuse indicated by deaths nel on individuals in military custody, as apparent in accounts of men who have of detainees. A report by Admiral church identified two instances of detainees an opportunity to speak about their experiences (and in some cases be medical- held at bagram in Afghanistan who died while shackled in a standing position ly examined) and in documents released under the Freedom of information Act and being beaten. in both cases, physicians who examined the individuals or through U.s. court proceedings. no similar information exists for ciA reported no evidence of bruising. Autopsies, however, revealed blunt force detainees because none of those detainees have been released and they and injuries to the detainees’ legs, with muscle injuries so severe in one case that a their lawyers are prohibited by the U.s. government from publicly disclosing leg amputation would have been required had the detainee survived. Admiral methods of interrogation or their effects on the detainees. We do, however, have church reported that the local physicians “may have misrepresented” the extent some knowledge about 14 of these so-called high-value detainees from a report of the injuries, either consciously or because of an inadequate examination.230 of interviews with them by the icrc after their transfer to guantánamo bay in Admiral church expressed similar concerns regarding whether physicians 2006. that report was leaked to the press. failed to disclose or even misrepresented injuries that led to the death of in assessing impact, it is important to understand that enhanced and other detainees at Abu ghraib in iraq. in one case, a detainee slumped over and died abusive interrogation methods were not inflicted one at a time. rather, detainees 52 | Ethics AbAndonEd The role of health professionals | 53 were subjected to many of them continuously and in combination over weeks or and independent medical evaluations.241 in one study, 11 former detainees, four months.235 Many detainees lived in conditions of confinement that included iso- of whom had initially been held in Afghanistan and were then transferred to lation, cold temperatures, loud noise, and sleep deprivation. As a result, the guantánamo, and the remainder of whom were detained in iraq, were inter- effects stem not from discrete acts inflicted at a moment in time but from an viewed over two days and agreed to physical and mental health evaluations. ongoing regime. Although not a random sample, the findings are revealing. Most of the men According to the icrc interviews, individuals in ciA custody were kept in were severely beaten when arrested and then subjected to various combinations continuous solitary confinement for periods ranging from 16 months to four of isolation, forced nakedness, stress positions, cold temperatures, sleep depri- years.236 Even their communication with custodians was extremely limited. vation, humiliation, and growling dogs. they reported that beatings on the head the detainees were subjected to multiple instances of techniques from among and neck, stomach, and genitals while held in Afghanistan or iraq led to excru- the following: waterboarding, prolonged standing stress positions for up to ciating pain as well as bruising and swelling.242 one man described how he was three days continuously and two to three months intermittently, body-slam- beaten so severely during an interrogation in bagram that he lost consciousness ming against walls, beating and kicking, nudity for weeks at a time, confine- and subsequently required surgery. soon after the surgery he was transferred to ment in a box, sleep deprivation, exposure to cold temperatures, prolonged kandahar, and though weak, he was hooded and shackled, with his knees taped shackling of hands, threats to the detainee and his family, forced shaving, and together in a kneeling position while tied to the floor.”243 A number of other deprivation of solid food. detainees also reported losing consciousness from beatings. suspensions—one the interviews focused more on what was done to them than on the pain and man held in iraq was suspended ten times—led to severe muscle and joint pain, suffering it brought, but their descriptions of being beaten, slammed against even dislocations. Men brought to guantánamo reported that they had experi- walls, waterboarded, and otherwise brutalized leave little doubt of the pain and enced very painful swelling and bruising from use of handcuffs and on some terror these techniques brought about. occasions from beatings they received. Another detainee recalled suffering from Abu Zubaydah, whose interrogation occasioned the first Justice department nausea and vomiting and saw blood in his urine as a result of his treatment dur- approval, described his experience of waterboarding and part of its aftermath to ing initial detention at guantánamo. Medical records at guantánamo show that the icrc: “i struggled without success to breathe. i thought i was going to die. one detainee had a seizure during an interrogation. i lost control of my urine. since then i still lose control of my urine when under the pain detainees suffered has endured long after release. six of 11 men stress.”237 in the time between waterboard sessions, Zubaydah was subjected to in a Physicians for human rights study experienced chronic headaches. the slamming against a wall, sleep deprivation, loud music, and confinement in a study also found evidence of chronic musculoskeletal pain from suspensions, box. he described how being confined in the box without the ability to sit other stress positions, and beatings. this finding is consistent with the upright created “stress on my legs that held in this position meant that my results of another study from the University of california, berkeley, of 62 wounds both in the leg and stomach became very painful.”238 during periods detainees released from guantánamo, which found that for many former when he was not in a box he was kept with a hood over his head. Also, notwith- detainees, the legacy of guantánamo was ongoing pain in their wrists, knees, standing the classified nature of what happened to Zubaydah, information on backs, and ankles.244 the impact of his torture leaked into the public domain. According to that infor- the mental health consequences of interrogation and detention practices mation, he suffered permanent brain damage and seizures, blinding headaches, were both acute and long-lasting, likely a product of the deliberate strategy of physical impairment, and amnesia.239 Another detainee in ciA custody degradation and inducement of fear, anxiety, and dread, as described above.245 described his treatment while being held in kabul after arrest: “i was punched the berkeley study found that two-thirds of the people interviewed experi- and slapped in the face and on the back to the extent that i was bleeding. While enced serious emotional difficulties from memories of violence, extreme tem- having a rope round my neck and being tied to a pillow my head was banged to peratures, and stress positions. Many of them had difficulty re-establishing the pillar repeatedly.”240 relationships with their families and most were unemployed and pessimistic the record is more extensive concerning the experiences of men held in mil- about their economic future.246 the Physicians for human rights study found itary custody, including reports from the detainees themselves, their lawyers, that all but one of the individuals evaluated suffer from severe mental health chAPtEr 2 problems, such as anxiety, depression, and post-traumatic stress disorder, the Organizational structures and policies latter including intrusive recollections of trauma suffered in detention as well as avoidance and emotional numbing behavior. While taking into account that directed the role of health professionals their experiences in war-torn countries and, for four of them, evidence of a in detainee abuse prior history of mental health problems, the clinicians nonetheless attributed these conditions to experiences in detention.247

WhAt lEd hEAlth ProFEssionAls to participate in—or even to be pres- ent during—torture and cruel, inhuman, or degrading treatment of detainees in the face of firm ethical standards prohibiting such participation? to explain such behavior, scholars have cited a range of social, cultural, organizational, and psychological factors, including (a) the difficulty of resisting complicity in what robert lifton calls an “atrocity-producing situation,” (b) the high social and pro- fessional costs of resisting command expectations, (c) the natural receptivity of individuals in military and intelligence organizations to admonitions to protect national security and fulfill the organization’s mission, (d) traditions of con- formity to authority within the medical profession, (e) reinforcement of ideas that detainees were trained in resistance techniques and thus would only pro- vide information through non-traditional means of interrogation, and (f) the foreignness of the detainees to many Americans.1 these factors may have both psychological and sociological force in explaining the unwillingness of medical personnel to challenge expectations or resist demands made of them. the task Force focused its attention on another set of factors: the military and intelligence-agency practices—policies, rules, procedures, and expecta- tions—that led to participation of health professionals in torture and cruel, inhuman, or degrading treatment. these practices included the manipulation of ethical and professional standards to enable health professionals to rationalize their participation in abuse, the expectation that health professionals would not resist policies and procedures that would lead them to share medical and psy- chological information about detainees with interrogators, abuse reporting pro- cedures and instructions that fall short of international standards, and the exclusion of interrogation-related practices from internal health professionals’ accountability mechanisms. the U.s. military has made some reforms, especially in the promulgation of clinical guidelines for detainee treatment and, in 2012, the creation of an ethics 56 | Ethics AbAndonEd Organizational structures and policies | 57 review board at guantánamo, but many of the most important institutional of non-maleficence applies to military health professionals assigned to prisons, structures and policies that formed the bases for health professional participa- especially in the context of torture.3 tion in torture and cruel, inhuman, or degrading treatment in the military have Under domestic and international standards, physicians and other health in recent years only been reinforced. the behavioral science consultation professionals working in prisons and detention centers are permitted to con- teams (bscts) have been institutionalized, the combatant role of their mem- duct evaluations to determine whether a prisoner or detainee has a mental or bers made official policy, and their role in detention operations and conditions physical condition that would preclude interrogation. but they are forbidden to of confinement remains in place. As we explain in the pages that follow, some subordinate the health interests and well-being of prisoners to the security, of these policies may even increase the likelihood that physicians, psychologists, intelligence, political, or institutional interests of the facility. According to the and other medical personnel become complicit or active participants in human Un Principles of Medical Ethics, “it is a contravention of medical ethics for rights or ethical violations against detainees. the department of defense (dod) health personnel, particularly physicians, to be involved in any professional interpretations of ethical standards rationalize interrogation roles for physi- relationship with prisoners or detainees the purpose of which is not solely to cians and psychologists. Finally, while the dod has developed detailed creden- evaluate, protect or improve their physical and mental health.”4 tialing and quality assurance procedures for licensed health professionals, those At the heart of the health professional’s obligation toward individuals in cus- procedures lack provisions for reviewing compliance with professional respon- tody is the responsibility not to engage or be complicit, actively or passively, in sibilities toward detainees or disciplining health professionals who participate torture or cruel, inhuman, or degrading treatment or punishment.5 this includes in abuse of detainees. taking any action, however indirect, that would enable torture either to begin or Unless otherwise indicated, this chapter pertains exclusively to the dod. the to continue. in 1975, the World Medical Association condemned the participa- task Force has no information on the ciA since the issuance of a ciA inspector tion of physicians in torture in any manner, including being present when tor- general’s report in 2004, which far from removing health professionals from ture takes place or treating individuals so that torture can continue.6 in 1984, the interrogation, increased their role and led to even greater involvement in tor- American Psychological Association and the American Psychiatric Association ture than previously. in 2009, however, the ciA was removed from the business issued a joint statement condemning the use of torture.7 in 1992, the American of detaining alleged terrorists. college of Physicians adopted a position similar to the World Medical Association’s and in 1995 issued a detailed policy on the role of physicians and the medical profession in the prevention of international torture.8 the American The undermining of medical ethics Medical Association issued an ethics opinion in 1999 stating that a physician in military and intelligence practice may not participate in torture, be present when torture is conducted or threat- ened, or provide evaluation or treatment so that torture can continue.9 As noted in this report’s introduction, health professional associations in the wake of the Abu ghraib scandal and revelations about medical involve- throughout the world have established ethical standards for doctors, nurses, ment in abuse at guantánamo, the dod and the Army Medical command estab- and psychologists who work in prison and detention facilities, all derived from lished more explicit standards of conduct for treatment of detainees. the duties not to harm (non-maleficence) and to promote well-being (benefi- Assistant secretary of defense for health Affairs issued a directive stating that, cence). these standards not only promote ethical behavior and reinforce the “health care personnel charged with the medical care of detainees have a duty to health practitioner’s commitment to protect the well-being of patients or oth- protect detainees’ physical and mental health and provide appropriate treatment ers subject to medical or psychological evaluation, but they empower health for disease. to the extent practicable, treatment of detainees should be guided by professionals to resist demands from commanders to participate in abuse of professional judgments and standards similar to those applied to personnel of the detainees. the role of health professionals in complying with ethical responsi- U.s. Armed Forces.”10 it prohibited clinicians from taking any action that was not bilities toward prisoners is considered so important worldwide that the United for the purpose of evaluating, protecting, or improving detainees’ physical and nations has promulgated professional standards on the subject.2 there is broad mental health, and required maintenance of accurate and complete medical consensus within the field of , too, that the ethical principle records.11 A subsequent U.s. Army manual on medical support for detainee oper- 58 | Ethics AbAndonEd Organizational structures and policies | 59 ations fleshed out these ethical duties, setting out obligations regarding stan- dards for treatment of prisoners so as to undercut the universal norm of promot- dards of care, preferences for patient consent to treatment (with exceptions), ing well-being and avoiding harm.16 For example, where the Un principles state confidentiality of medical records, treatment with respect and dignity, abuse that it is a contravention of medical ethics for a physician to have “any profes- reporting, and prohibition on security-based body-cavity searches.12 sional relationship” with a prisoner other than to evaluate or seek to improve At the same time, however, the ciA and dod undermined these standards the individual’s health, the dod replaced the key language with the more limit- by reinterpreting and rewriting them for military and intelligence medical per- ed phrase, “any patient-clinician relationship”17 (the dod’s ethical obligations sonnel. they contravened otherwise strong ethical requirements by creating for behavioral science consultants are discussed in the next section). exceptions to them. the evidence suggests these actions were part of the ’s view is universally rejected among professional organizations process of engaging medical personnel in interrogation whose objective, accord- that establish standards for physicians. Although there may be circumstances ing to the ciA office of Medical services (oMs), was to “psychologically ‘dislo- where ethical obligations vary with role, core obligations grounded in benefi- cate’ the detainee, maximize his feeling of vulnerability, and reduce or eliminate cence and non-maleficence remain for all regardless of role. the obligation of his will to resist our efforts to obtain critical intelligence.”13 physicians and psychologists not to harm the individuals they encounter in pro- the agencies reshaped ethical standards in three ways: (1) excluding individ- fessional practice and while using professional skills is based on the role they uals acting as behavioral science consultants from some key ethical require- play in society and what has been aptly described as a social contract with soci- ments applicable to their profession, (2) conflating ethical requirements with a ety.18 in effect, the dod sought to have it both ways: it wanted to ensure that its mere obligation to obey the law, and (3) characterizing health professionals on behavioral science consultants possessed recognized professional qualifications, bscts as “safety officers” whose function includes protecting detainees as well including a license for clinical practice in psychology or forensic psychiatry, but as assisting in intelligence gathering. also excluded them from the full panoply of ethical norms that govern their pro- fessions and that they committed as licensed professionals to uphold. ExclUding bEhAviorAl sciEncE consUltAnts When the post-9/11 involvement of U.s. health professionals in detainee FroM kEY EthicAl dUtiEs abuse and the position of the dod on ethical standards became known, medical in conjunction with deploying bscts in the planning and use of abusive inter- authorities and professional medical organizations studied and rejected the rogation methods, the military introduced a distinction between ethical stan- dod’s limitations on the ethical responsibilities of physicians. they made dards applicable to clinical practice and those for non-clinical practice, a dis- explicit their view that the duties of beneficence and non-maleficence applied tinction that does not exist in the health professions. As the dod now asserts, to physicians engaged in interrogations, including lawful ones. they specifically one key professional obligation, the duty to limit or avoid harm, is applicable noted that these interrogations often include the use of manipulation, decep- only in situations where the health professional has a clinical relationship with tion, and stress-inducing tactics on the person subject to questioning, but do not the patient. current military instructions state that only medical personnel constitute torture or cruel, inhuman, or degrading treatment. “charged with the medical care of detainees (emphasis added) have a duty to pro- the World Medical Association took up the question first. After review, it tect detainees’ physical and mental health and provide appropriate treatment concluded that the duties to avoid and prevent harm and promote well-being are for disease.”14 health personnel who do not provide these clinical services, the inconsistent with any action that creates discomfort for, induces stress on, dod asserts, only have an obligation to obey the law as it applies to detainees. deceives, or manipulates an individual where these actions have no therapeutic the purpose of this interpretation was to exclude behavioral science consult- purpose. Accordingly, in 2005, it amended its declaration of tokyo, which pro- ants from the duty to protect health. hibited physician participation in torture, to add that, “the physician shall not the distinction between clinical and non-clinical obligations was first assert- use nor allow to be used, as far as he or she can, medical knowledge or skills, or ed in 2004 by then deputy Assistant secretary of defense for health Affairs health information specific to individuals, to facilitate or otherwise aid any inter- david tornberg, who argued that when a doctor participates in interrogation, rogation, legal or illegal, of those individuals.”19 American medical organizations “he’s not functioning as a physician.”15 the dod went so far as to change key followed suit. the same year, the American college of Physicians, composed of words in the United nation’s standards of medical ethics, drafting its own stan- specialists in internal medicine and constituting the second-largest medical asso- 60 | Ethics AbAndonEd Organizational structures and policies | 61 ciation in the United states, stressed in its medical ethics that it is unethical for consultants—can ethically participate in interrogation. the policy originated in a “…physician to be used as an instrument of government for the purpose of a report from the association’s Presidential task Force on Psychological Ethics weakening the physical or mental resistance of another human being.”20 and national security (PEns) and was rapidly adopted by the association.27 the in 2006, the American Psychiatric Association issued a policy statement (see PEns task force, however, was far from disinterested: a majority of its members appendix 3, which includes relevant policy statements for all the professional were affiliated with military or intelligence agencies and some served on associations) against psychiatrists directly participating in interrogation.21 one bscts.28 this irregularity leads our task Force to defer less than we might oth- participant in the association’s review explained that there were two rationales erwise to the decision of a professional association in setting ethical standards. for the decision: First, interrogation is, by its very nature, coercive and decep- Further, our review of the American Psychological Association’s ethical princi- tive, and detainees in national security interrogations conducted by military and ples leads us to conclude that the PEns position is inconsistent with the asso- intelligence agencies lack the ability to stop the interrogations, unlike individu- ciation’s principles regarding the avoidance and minimization of harm, trans- als in the criminal justice system who can exercise their Miranda rights. the fre- parency, and conflicts of interest. those principles, for example, do not make quent use of false information by interrogators to elicit intelligence from distinctions in fundamental obligations based on whether a psychologist occu- detainees adds to the inappropriateness of medical participation. second, inter- pies a clinical or a non-clinical role.29 instead, as stated in one of its key princi- rogation is incompatible with psychiatrists’ role as providers of treatment and ples, “Psychologists must take reasonable steps to avoid harming their patients healers, as it undermines trust in physicians and potentially compromises the or clients, research participants, students, and others with whom they work, communication essential to good medical care.22 the association rejected an and to minimize harm where it is foreseeable and unavoidable.”30 Far from cre- alternative proposal to permit participation in interrogation so long as those ating differing obligations based on role, the American Psychological interrogations were not coercive, believing that a psychiatrist who provides Association’s ethical principles impose the obligation regardless of role. For information for interrogation would have no way of knowing how it was used.23 example, in forensic examinations, the association has ethical standards requir- the association opined that a psychiatrist can ethically share general knowledge ing disclosure of the psychologist’s role on behalf of the court or other entity and about interviewing techniques that could be used by interrogators, but recog- the degree to which information will not be kept confidential. these responsi- nized that a firm line must be drawn at using any knowledge about or providing bilities are inconsistent, indeed incompatible, with the military requirement any advice concerning the interrogation of a particular individual. that a bsct psychologist not be identified as such to detainees. the psycholo- soon thereafter, the American Medical Association issued a new ethics opin- gist behavioral science consultant thus cannot disclose his or her role as ethical- ion taking the same position against physicians’ direct participation in interro- ly required, much less explain to the detainee the uses to which the psycholog- gation.24 And in 2008, the American college of Physicians stated more specifi- ical information will be put. cally that, “Physicians must not conduct, participate in, monitor, or be present Although purporting to support earlier resolutions against torture, the PEns at interrogations, or participate in developing or evaluating interrogation strate- report also noted that the American Psychological Association permits psychol- gies or techniques.”25 ogists to resolve conflicts between law and ethical standards in favor of the these ethical obligations apply notwithstanding conflicting legal require- law,31 which in practice meant allowing participation in all the interrogation ments. the American Medical Association’s position is unequivocal: methods approved by the department of Justice. the PEns report also asserted a responsibility, found nowhere among the American Psychological Ethical values and legal principles are usually closely related, but ethical Association’s ethical principles, to balance harms to individuals against national obligations typically exceed legal duties. In some cases, the law mandates security interests: “Psychologists have a valuable and ethical role to assist in pro- unethical conduct. In general, when physicians believe a law is unjust, tecting our nation, other nations, and innocent civilians from harm, which will they should work to change the law. In exceptional circumstances of unjust at times entail gathering information that can be used in our nation’s and other laws, ethical responsibilities should supersede legal obligations.26 nations’ defense.” the report claimed psychologists have a unique and “central” of the professional groups, only the American Psychological Association has role to play in “ensuring that [interrogation and information-gathering] process- endorsed the idea that health professionals—in this case, behavioral science es are safe, legal, and ethical for all participants.”32 62 | Ethics AbAndonEd Organizational structures and policies | 63

our task Force notes that reconciling the intelligence interests of the state rogator and asking interrogation questions, as the psychologist in both cases is and the well-being of the detainee is impossible for an individual psychologist directly participating in the tactics used. As then-president of the American in the situation of interrogation. the psychologist is in no position to know the Psychiatric Association, nada stotland, said, “it’s not the role of psychiatrists value of the information sought for national security or determine the bound- to figure out people’s weaknesses and try to prey on them…. this is about the aries of harm that may be imposed to support gaining the information, much soul of a psychiatrist, which is to be dedicated to helping people and healing less how to strike an appropriate balance between the two. At the same time, he people.”36 the dod itself has recognized the inherently harmful dimension of or she should not defer to the judgments of commanders or other intelligence interrogation, which is the basis for excluding clinicians from participating in officials on key ethical obligations. it: “Under the provisions of the geneva conventions, medical personnel are the American Psychological Association’s adoption of the PEns report prohibited from engaging in acts that are considered harmful to the enemy. prompted a major controversy within the organization.33 the large new York therefore, medical personnel providing direct patient care for detainees will affiliate adopted a contrary position in supporting proposed state legislation not provide assistance to detainee interrogation teams.”37 that would render participation in interrogation a disciplinary offense. the the standards of forensic practice recognize the centrality of practitioners’ association adopted more detailed ethical standards against participation in tor- adherence to basic medical and psychological ethical standards. the preamble ture, including identifying certain interrogation methods, such as isolation and to the American Academy of Psychiatry and law’s ethics guidelines for the sensory deprivation, as forms of torture.34 A member-initiated referendum practice of forensic psychiatry, issued in 2005, for example, notes that forensic declared that psychologists may not work in settings where persons are held in psychiatrists are “bound by the underlying ethical principles of respect for per- violation of international law or the U.s. constitution unless on behalf of the sons, honesty, justice, and social responsibility.”38 in cases where evaluations person detained or a third party seeking to protect human rights.35 the original are done for third parties, the guidelines state that a forensic psychiatrist must PEns view that it is ethical for psychologists to participate in interrogations indicate for whom the evaluation is being conducted and what use will be nevertheless remains official American Psychological Association policy. made of the information obtained. but behavioral science consultants working supporters of the American Psychological Association position have argued for the military do not show the “respect for persons” the standards require, as that evaluating individuals for lawful interrogation, providing advice to inter- they are engaged in deception, exploitation, and manipulation. indeed, decep- rogators in individual cases, and observing and commenting on individual inter- tion is required by current military instructions, which state, “[behavioral sci- rogations is different both from clinical practice and from asking questions or ence consultants] will not display recognizable patches or other designations other direct interactions with a detainee. it is a position the task Force takes seri- on uniforms identifying them as health care providers or medical personnel ously, but rejects. According to this view, these activities are akin to a forensic while supporting detention operations, intelligence interrogations, or detainee role, such as assessing individuals for competence, suitability for child custody, debriefings so as to avoid any misperceptions of the [behavioral science con- or insanity in a criminal case, all of which can also have negative consequences sultants’] function or role.”39 for the person evaluated. there may be some ethically relevant differences the forensic psychiatry guidelines also take account of the “core principle” between forensic and clinical practice, but we believe that in both roles, the stan- of informed consent in forensic evaluations. Although they note that court- dards of beneficence, non-maleficence, disclosure, and transparency apply. ordered evaluations may be undertaken without consent, the psychiatrist must Further, interrogation differs fundamentally from forensic evaluations. nevertheless seek to obtain consent. Moreover, forensic psychiatrists are Evaluations for judicial or other proceedings are for impartial determinations instructed not to perform such evaluations on behalf of government investiga- by decision-makers to resolve factual or legal questions, not for exploitation of tors or prosecutors unless the person has had a chance to consult with counsel. a person’s vulnerabilities or use in manipulation, as advising in even lawful For bscts, by contrast, consent is circumvented entirely because the role is interrogation is. Moreover, in forensic roles, the psychologist is not a partici- designed to identify and exploit vulnerabilities. pant in strategy or tactics, but an expert to aid a neutral decision-maker. in mil- in 2011, the PEns task force position was further undermined by revisions to itary practice, the psychologist is directly engaged in interrogation, regardless the American Psychological Association’s specialty guidelines for Forensic of who asks the questions; there is no distinction between advising an inter- Psychology.40 the substantive provisions of the guidelines, though not binding, 64 | Ethics AbAndonEd Organizational structures and policies | 65 underscore why the behavioral science consultant role in interrogation is ethical- health professionals refrains from using the language of preserving well-being ly untenable. First, the guidelines call for transparency and disclosure in reveal- and avoiding harm, instead using the language of legal requirements: these ing the purpose of any evaluation conducted to the person being evaluated. health professionals have an obligation “to uphold the humane treatment of disclosure may include “the purpose, nature, and anticipated use of the exami- detainees and to ensure that no individual in the custody or under the physical nation; who will have access to the information; associated limitations on priva- control of the dod, regardless of nationality or physical location, shall be subject cy, confidentiality, and privilege, including who is authorized to release or access to cruel, inhuman, or degrading treatment, in accordance with and as defined in the information contained in the forensic practitioner’s records; the voluntary or U.s. law.”47 All the controlling words in this formulation are not only legal in involuntary nature of participation, including potential consequences of partici- nature, but describe avoiding conduct that could result in criminal prosecution. pation or non-participation.”41 these disclosures are all inconsistent with the thus, the dod undercuts traditional expectations of conduct for health profes- very nature of bsct practice, where non-disclosure and deception govern.42 sionals engaged in interrogation support by equating ethical conduct with the second, citing the American Psychological Association’s ethical code, the minimal requirement of abiding by criminal laws. in taking this position, which guidelines warn forensic practitioners to “refrain from taking on a professional remains in place today, the dod undercuts the standards of medical ethics for role where conflicts of interest could reasonably impair their impartiality, compe- military health professionals and creates a harmful breach between civilian and tence or judgment.”43 it particularly warns psychologists about the need for care, military medicine. and possibly delaying the examination, in situations where a person examined the U.s. Army guidance on behavioral science consultants also rejects the lacks appropriate counsel.44 in military practice, the behavioral science consultant expectation that licensed health professionals in its employ adhere to the ethi- role is grounded in a conflict of interest, as the person is expected both to protect cal standards set by their professional associations’ ethical principles. the detainee and advance intelligence gathering. the PEns task force recognized The DOD requires that all military professionals perform their duties in an the conflict, but rather than concluding that it inevitably leads to an intolerable ethical manner, consistent with their professional ethics, although they are ethical breach, it urged a “delicate balance of ethical considerations.”45 neither required to join nor adhere to the policies of any specific third, engaging in the calibration of harm, which is central to the behavioral professional organization.48 science consultant role, is unacceptable under the guidelines, all the more so when judgment is inevitably affected by a conflict of interest. the guidelines rather, the dod reinterprets those requirements and then holds that partic- note that the duty to avoid conflicts of interest is particularly important where ipation in interrogation is ethically appropriate because of the requirement of they “expose a person with whom a professional relationship exists to harm.”46 humane treatment: in view of the clarity of the guidelines on matters central to the function of In consideration of the safeguards including those for humane treatment of bscts, the task Force believes the American Psychological Association should detainees, the consultative nature of the work of BSCT personnel, revise its stance on direct participation in interrogation. the task Force also reporting requirements for all personnel, as well as the clear distinction calls on the dod not to follow the PEns standard and instead harmonize its between healthcare functions and behavioral science consultation, the own practice with the prevailing view of professional obligations as expressed [Office of the Surgeon General] determines that performance of behavioral by the medical associations. that course would require abandoning the artificial science consultation duties as described herein is deemed ethical practice distinction in professional obligations based on clinical or non-clinical roles consistent with medical and psychological ethics.49 and, with it, the participation of health professionals in interrogation. An example of this reinterpretation of professional standards is contained in conFlAting lEgAl the 2009 version of the bsct guidance, where the Army Medical command And EthicAl obligAtions stated that notwithstanding the obligations imposed by their professional in setting out the ethical obligations of medical personnel in support of organizations, physicians who do not provide medical care could be involved in enhanced interrogation, both the dod and the ciA conflated legal standards decisions about interrogating individuals “if warranted by compelling national with ethical ones. the dod instruction on ethical standards for non-clinical security interests.”50 no such exception exists. in the 2012 revision, that sen- 66 | Ethics AbAndonEd Organizational structures and policies | 67 tence was removed, but the authorization for forensic psychiatrists to partici- interrogation support by bscts was not the only area where the dod substi- pate in bscts was retained as an ethically permissible means of “balancing obli- tuted legal standards of conduct for medical ones. in the case of medical gations to society against those of individuals.”51 to justify this position, the involvement in punishment, the dod substituted a duty only to obey domestic surgeon general cites the American Medical Association’s policy on medical law for ethical obligations founded on international human rights require- participation in interrogation for authorization of such balancing, but in fact ments. Whereas the Un Principles of Medical Ethics prohibits certification of the policy contains no allowance for balancing obligations to the individual or participation in punishment that may adversely affect the subject’s mental against those of society.52 A report accompanying the proposed ethical standard health if it is not in accord with international instruments, the dod allows cer- discusses potential balancing of interests but is not considered by the American tification or participation if that punishment is in accord only with U.s. law.57 Medical Association to be part of or a basis for interpreting the ethical standard; With respect to the ciA, the few (and heavily redacted) documents the task indeed, the report, while posted on the American Medical Association’s website, Force has been able to review reveal that, as of 2004, the agency’s position sim- contains a disclaimer in large, bold, capital letters that it is not to be cited, ilarly conflated adherence to criminal law with compliance with ethical obliga- reproduced, or distributed without express permission.53 tions. Even as the ciA recognized that physicians support interrogation meth- Psychologists, too, are affected by the conflation of legal and ethical stan- ods that are designed to maximize the detainees’ feelings of vulnerability and dards, as the Army Medical command goes beyond the PEns position and helplessness, and reduce or eliminate their will to resist, it affirmed the ethical requires psychologists to adhere only to legal requirements such as humane obligations of physicians participating in the interrogations: treatment. While the PEns task force introduced the concept of balancing All medical officers remain under the professional obligation to do no responsibilities to the individual against national security (as noted, a posi- harm. [sentence redacted] Medical officers must remain cognizant at all tion we find faulty), it did not eschew ethical obligations of psychologists in times of their obligation to prevent “severe physical or mental pain and a behavioral science role altogether.54 the bsct guidance, while noting that suffering.”58 all licensed psychologists are bound by the American Psychological Association’s ethics code, states that the code pertains only to psychologists’ the quoted language is in the original. As the dod did, the ciA replaced eth- activities that are “part of their scientific, educational or professional roles.” ical obligations with obedience to domestic law. the phrase “severe physical or it asserts that the code does not have purview “over the psychologist’s role mental pain or suffering” is taken directly from the U.s. anti-torture criminal as a soldier, civilian, or contract employee that is unrelated to the practice statute59 and means that health professionals in its employ are permitted to of psychology.”55 impose harm so long as it does not amount to legally-prohibited severe harm. According to the bsct guidance, behavioral science consultants are combat- the significance of the ciA’s use of the legal standard, “severe physical or men- ants, so the question arises whether the code of ethics applies at all to psychologists tal pain or suffering,” is especially apparent in light of Justice department opin- on bscts. on the one hand, the guidance concedes that the ethics code applies to ions, shared by the oMs, that deemed mental harm to be severe only if it lasted psychologists in the performance of their profession. but on the other, it interprets for months or years.60 this conflation of criminal law and ethical standards not the code to do nothing more than impose a standard of humane treatment. thus only appeared to justify medical participation, but likely helped to induce psy- the guidance notes that “applicable U.s. and applicable law, regulations and dod chologists and physicians to acquiescence in interrogation. policy require the humane treatment of all detainees, regardless of status. this tenet is completely consistent with the Ethics code.”56 that is an incorrect state- crEAting thE illUsion oF ment, as the ethics code requires far more than humane treatment, including a hEAlth ProFEssionAls As sAFEtY oFFicErs duty to minimize harm where it is foreseeable and avoidable, avoid conflicts of both the military and the ciA adopted a third strategy that supported departure interest, and ensure transparency and consent. in a similar vein, the ethics code’s from professional ethical obligations: conveying to health professionals that requirement to minimize harm is equated in the guidance with humane treatment they were present to protect the safety of the detainee, thus appealing to their of detainees. in other words, stringent ethical standards applicable to psychologists training in exercising the duties of beneficence. As noted in chapter 1, from the are discarded for the legal standards all soldiers must follow. start of the abusive interrogation program in the months after 9/11, both agen- 68 | Ethics AbAndonEd Organizational structures and policies | 69 cies claimed to rely on physicians and psychologists to avoid undue harm to remain classified. the task Force is not aware of specific cases where either detainees through pre-interrogation medical evaluations, monitoring and in bsct or ciA medical personnel intervened to prevent harmful conduct (chap- some cases intervening in interrogations, and signing off on interrogation plans ter 1 describes cases where members of bscts encouraged acts of torture), using sleep deprivation or isolation. this claim contributed to their legal and though such cases may exist. policy justifications in 2002 for the use of methods of interrogation that clearly the task Force’s concern, like that of the World Medical Association and harmed detainees. it also served to justify health professionals’ participation in other entities that have looked at the claimed protective role of health profes- abusive interrogation. sionals in interrogation, is that having a psychologist on-site during interroga- When reports of severe mistreatment of detainees at guantánamo and tions could potentially have the opposite effect to providing “safety.” the elsewhere began to appear in the press, and complaints surfaced within the health professional may either give license to interrogators to inflict harm ciA about the use of waterboarding and other dangerous methods of interro- until he or she says stop or provide interventions so that the torture can con- gation, the dod and ciA emphasis on the participation of health profession- tinue.65 the task Force also notes the contradiction between the explicit als as a safeguard intensified. by 2004, both the ciA and military began mak- requirement of bscts to identify and exploit detainee vulnerabilities on the ing explicit claims that the role of doctors and psychologists in interrogations one hand and to protect these same detainees on the other. these opposite was to protect the detainee.61 As noted in chapter 1, this role was cited by functions could only be reconciled in an environment where the threshold of Justice department lawyers to support their claim of the legality of enhanced what constitutes harm to the detainee—the result of conflating ethical and interrogation methods, including waterboarding.62 the evidence suggests, legal standards as described above—is so high that psychologists could believe though, that the characterization of health professionals as detainee protec- they were serving what were otherwise inconsistent objectives. in ethical tors was more than a legal justification; it was also intended to convince bsct practice, moreover, there is no balancing the conflicting goals of intelligence members and ciA physicians, as well as critics, that medical and psychologi- gathering and detainee protection. cal personnel were acting in a traditional health professional role, looking the concept of a psychologist or physician as a safety officer may have served after the well-being of detainees. to reassure health professionals participating in interrogation that they were by 2004, the dod began to characterize psychologists on bscts as “safe- acting consistently with ethical obligations. the idea of a safety officer could ty officers,” a description that remains in place today. in addition to per- well have also provided a comforting rationalization for the PEns task force forming the “mission critical” role of advancing intelligence goals by secur- affirmation of psychologist participation in interrogation, as it noted that psy- ing information from detainees, the dod has asserted that the behavioral chologists are “uniquely” suited to ensure the safety of interrogation.66 individ- science consultant’s role is to ensure the protection of detainees by prevent- ual members of bscts, when called upon to explain their role to representa- ing interrogators from “behavioral drift” that could lead to what even they tives of medical associations who visited guantánamo, or in other venues, consider torture or other practices that would lead to severe harm to repeatedly cited the safety officer characterization of their role. larry James, detainees.63 the oMs also claimed a protective role for health profession- who headed bscts at guantánamo and in iraq, portrays his role in precisely als, stating that the use of enhanced interrogation methods is “conditional this way, entitling his book “Fixing hell,”67 seeking to portray his role as amelio- on on-site medical and psychological personnel confirming from direct rating abusive practices used against detainees. his own account reveals, however, detainee examination that the enhanced technique(s) is not expected to that when personally observing terribly abusive behavior by an interrogator, produce ‘severe physical or mental pain or suffering.’”64 As this language he did not intervene to protect the detainee, only later suggesting alternative suggests, the ciA at once elevates the role of medical and psychological per- approaches to the interrogator. sonnel in preventing detainee abuse and lowers the standard for what action in the task Force’s view, the only way to restore the ethical integrity of health against detainees is ethically tolerable—that is, they are not present to pre- professionals in the military is to end the distinction between military and civil- vent any harm, but only harm that violates the law on torture and cruel, ian ethics, affirm the centrality of obligations of non-maleficence and benefi- inhuman, or degrading treatment. cence, and abandon standards that permit health professional participation in, the record of “safety officer” practices remains scant as interrogation logs monitoring of, or advice regarding interrogation. 70 | Ethics AbAndonEd Organizational structures and policies | 71

The use of detainee medical and direct access to detention center records. Military authorities should have insti- psychological information in military interrogation tutional policies, procedures, and accountability reviews that safeguard medical information from interrogators, health professionals not involved in the care of the policy of exploiting a detainee’s vulnerabilities in order to wrest potentially the detainees, guards, and other unauthorized detention center personnel. useful intelligence from him rendered detainee medical records a natural in 2004, the international committee of the red cross (icrc) found that source of information for use in devising interrogation strategy. For health pro- medical records at guantánamo had become a source of information used in fessionals, this raises concerns about the confidentiality of medical information. trying to extract intelligence from detainees.72 When the icrc report on these the duty to protect confidentiality in medical practice is not absolute, and open medical files became public in late 2004, the dod at first denied its accu- sometimes must yield to the duty to protect the safety of identifiable third par- racy. however, policy at guantánamo since 2002 had not only asserted that ties. the legal consequences of disclosure can be serious, including placing the detainees had no right to the confidentiality of medical information, but also patient at risk of prosecution. Even so, the claim for respect for confidentiality required medical personnel to “convey any information” concerning “the is strong when a breach can result in direct and significant physical or mental accomplishment of a military or national security mission including homeland harm to the individual through the interrogation process. defense” obtained “in the course of treatment” to non-medical military or reflecting a strong international consensus, the World Medical Association “other” personnel “who have an apparent need to know the information.”73 had since 1975 held it unethical for a physician to use knowledge to facilitate the original bsct standard operating procedure from 2002 stated that one the practice of torture.68 in 2006, in response to revelations of U.s. interroga- of the “mission essential tasks” for behavioral science consultants was to “act as tors using medical information about detainees, the World Medical liaison” between the Joint intelligence group, which was responsible for inter- Association clarified the duty, stating that, “When providing medical assis- rogation, and the Joint task Force, which ran guantánamo. this function tance to detainees or prisoners who are, or who could later be, under interro- included describing “the implications of medical diagnosis and treatment for gation, physicians should be particularly careful to ensure the confidentiality the interrogation process.”74 of all personal medical information.” to ensure the protection of detainees, its A senior psychologist assigned to guantánamo in early 2003 said he was told revised ethical standard states that “the physician shall not use nor allow to be that military, ciA, and Fbi interrogators routinely demanded and obtained clin- used, as far as he or she can, medical knowledge or skills, or health information ical records from the hospital treating detainees.75 the Army surgeon general specific to individuals, to facilitate or otherwise aid any interrogation, legal or also reported that bscts maintained their own database of medical information illegal, of those individuals.”69 on detainees.76 the surgeon general reported that in iraq, though health care Even in circumstances where confidentiality of information may legally and providers were not required to verbally share medical information with intelli- ethically be breached, physicians and psychologists have a duty not to harm. Part gence operations, they were not prohibited from doing so even after the revela- of that obligation is to notify the individual whose information is to be released tions of detainee abuse at Abu ghraib;77 in at least one location in iraq, inter- and to disclose only the minimum information necessary to accomplish the pur- rogators themselves held medical records.78 the use in interrogation planning pose of the release.70 Psychologists are similarly obligated to discuss with anyone of medical information and psychological assessments obtained ostensibly for with whom they have a professional relationship the limits of confidentiality and treatment purposes was widespread. As described in chapter 1, psychologists the foreseeable uses of the personal information given them.71 working for the ciA and for the military also assessed the psychological status in addition to the individual health professionals’ responsibility to maintain of detainees in order to exploit their vulnerabilities. this included face-to-face confidentiality of detainee medical information, it should be recognized that interviews designed to obtain information potentially helpful to interrogators, medical records in health care institutions are kept on file, electronically or oth- personality profiling, identification of mental health conditions and diagnoses erwise, by the institutions. they also have a responsibility to protect confiden- (if any), and evaluations of likely ability to resist interrogation. tiality of medical records, including ensuring that records are not misused for After controversy erupted as a result of the icrc report, which was leaked purposes other than for health care of the patient. Many of the incidents in to the public, the dod issued a series of ambiguous, confusing directives that which interrogators accessed detainee medical information had to do with their purported to limit the use of medical information for interrogation purposes. 72 | Ethics AbAndonEd Organizational structures and policies | 73 but rather than repudiating the use of medical and psychological information, used for interrogation. the instruction, which remains policy today,85 refer- the dod continues to allow medical and psychological information about ences U.s. law, apparently a reference to hiPAA (the health insurance detainees to be used in interrogation, so long as it does not come from records Portability and Accountability Act), which permits disclosure of medical of clinical treatment. the basic distinction in place today is that individual and records for any lawful law enforcement, intelligence, or national security–relat- institutional medical care providers may not share clinical information with ed activity, so long as certain procedural requirements are met.86 the instruc- interrogators, but health professionals who are members of bscts can perform tion warns against misuse of records, but does not state or imply that interroga- assessments of detainees and share them with interrogators. tion is a misuse. the instruction states that, “detainees shall not be given cause the first policy to make this distinction appears to have been issued in to have incorrect expectations of privacy or confidentiality regarding their med- March 2005 in a standard operating procedure stating that, “neither bsct per- ical records and communications.”87 sonnel nor interrogation teams have access to medical records of detainees.”79it As noted, a broad exception exists in hiPAA for disclosure of medical further stated that medical information provided to interrogators by the bsct records for lawful intelligence and national security activities.88 however, in was for the purpose of alerting them to conditions that could affect the safety of the view of the task Force, the law did not consider nor did it anticipate the the detainee during interrogation. Yet in an annex to the operating procedure, unique confidentiality, human rights, ethical, and health care access issues a risk assessment protocol provided that in preparing risk assessments of arising in the context of detainee interrogation. For example, there are strong detainees for purposes of interrogation, the bscts should “provide a brief sum- disincentives for detainees to seek health care, knowing that the information mary based on medical and other reports, interviews with medical personnel, could be used in interrogation. Further, disclosure of detainee records can and possibly direct observations…[including] a brief statement of overall med- compromise the quality of clinical care, and create new ethical problems for ical condition provided by medical personnel,” as well as a summary of physical, health care professionals, if they have to weigh the consequences for detainees cognitive, and behavioral functioning, and a psychological history encompass- if information is included in the medical record that could be used to harm the ing information such as motivations for violent jihad travels.80 this information detainee during interrogation. is clearly related to exploitation, not protection. Medical personnel were the issue remains a sensitive one for the dod. Although official policy required to “provide information necessary” as part of the assessment.81 remains the same as in 2006, with its blanket allowance of using detainee med- six months later, in september 2005, the Army Medical command appeared ical information for interrogation purposes, Admiral Walsh’s 2009 review of to take a more unequivocal position against the use of records for interrogation: practices at guantánamo claimed that “behavioral science consultants have no “At no time, the military police or other detention facility personnel will have access to medical records or medical information systems”89 and that safeguards access to medical records and at no time will detainees’ medical information be are in place to prevent such access. the 2009 bsct guidance also states flatly used during interrogation.”82 but the same document qualified the restriction, that behavioral science consultants “will not have access to detainee medical allowing the bscts to have access to medical records. it states that the behavioral records”90 and treating psychiatrists are not permitted to share records with science consultant “will not have access to medical records or any information bscts.91 it did, however, permit bscts themselves to make their own psycho- about a detainee’s medical treatment except as needed to maintain safe, legal and logical assessments of detainees. ethical interrogations.”83 such an exception clearly swallows the rule. Moreover, the most recent bsct guidance removed the unequivocal language in the the guidance allowed bscts to participate in the “interpretation of medical 2010 version prohibiting bsct access to medical information. instead, it con- records and information”84 so long as they are not engaged in clinical care. tains the ambiguous sentence, “detainee medical information obtained from in 2006, the controversy over access to medical information for use in inter- the medical team will not be used to enhance interrogations or debriefings.”92 it rogation reached the Pentagon civilian leadership, which makes policy for all is not clear whether the term “enhance” refers to enhanced interrogation, the armed services. Just as the World Medical Association was in the process of which is now banned in the armed forces, or instead means simply to aid inter- clarifying the duty of confidentiality in connection with medical treatment and rogation (medical information can be used to alert interrogators to conditions interrogation of prisoners and detainees, the Assistant secretary of defense for that could result in unintended harm during interrogation). regardless of the health Affairs issued an instruction explicitly permitting medical records to be intention, the revised guidance states, consistent with the 2006 directive, that 74 | Ethics AbAndonEd Organizational structures and policies | 75 medical information can be used for medical purposes. it also includes new lan- The inadequacy of policies on guage, that “[behavioral science consultants] are permitted to use medical infor- assessing and reporting detainee abuse mation within the scope of their duties in order to help maintain safety and order within a facility, or to prevent harm to a detainee.”93 these include risk despite its responsibility to ensure that all soldiers report abuse of detainees,100 and threat assessments and maintaining order within the facility. enemy prisoners, civilians, and other soldiers, from the time detainees first Apart from use of clinical records, bscts are required to conduct their own came into U.s. custody in 2001 through the public revelation of the Abu ghraib detailed assessments of detainees, including their medical and psychological scandal in April 2004, the dod had established no field- or theater-level conditions. indeed, those assessments are considered a core function of bscts, requirements for medical or psychological personnel to report abuse against and include psychological assessments of the character, personality, social inter- detainees.101 When procedures for abuse reporting by medical and psychological actions, and other behavioral characteristics of detainees, including interroga- personnel were finally established, they failed to meet international standards tion subjects.94 based on those assessments, members of the bsct are supposed for reporting, as well as requirements set out by the Army surgeon general in to advise interrogators, among other detention personnel.95 his review of medical practice regarding detainees. the only general limitation on the use of detainee medical information is that it may not be used “in a manner that would result in inhumane treatment, intErnAtionAl stAndArds For would be detrimental to the detainee, or would not be in accordance with appli- rEPorting AbUsE: thE istAnbUl Protocol cable law.”96 the only specific application of this principle of which the task the Manual on Effective investigation and documentation of torture and Force is aware is that bscts are not permitted to share information about other cruel, inhuman or degrading treatment or Punishment, commonly detainee phobias with interrogators.97 known as the istanbul Protocol, sets out international legal standards on protec- the tenuousness of the distinction between medical information in the clin- tion against torture and guidelines on how effective medical investigations into ical record and medical information obtained by bscts is recognized in the allegations of torture should be conducted. though not sponsored by the United guidance itself, as it urges bscts to withhold information about these assess- nations, the istanbul Protocol was accepted as a Un document in 1999,102 and ments from detainees: “it is not appropriate, given the functions of the psychol- its principles have been recognized by a number of human rights bodies, includ- ogist in this role and the dod, to inform the detainee that he is being assessed ing the Un general Assembly, the Un commission on human rights, the Un by a psychologist” (there is an exception for direct interview and psychometric committee Against torture, the Un special rapporteur on torture, and the testing, where the bsct member discloses that the assessment is not for med- African commission on human and Peoples’ rights. the protocol is often used ical purposes).98 the prohibition on disclosing the identity of the psychologist by medical experts in U.s. court cases in which torture is alleged. compounds the ethical violation, as withholding the fact that an evaluation is the istanbul Protocol includes the following provisions for medical evalua- taking place is inconsistent with the ethical standard common to the profes- tions and reports: sions of requiring disclosure and transparency. As detainees’ own accounts and the many interviews conducted with former detainees by human rights investi- • Evaluations must conform to standards outlined in the istanbul Protocol gators and journalists show, however, detainees have not been fooled, adding to • Evaluations must be under the control of medical experts, not security their distrust of health personnel. personnel this problem will not be solved until current high-level policy is changed to prohibit the use of all medical and psychological information to pursue intelli- • Medical evaluations and written reports must be prompt and accurate gence information. • Written reports should include: Finally, the new guidance further expands the uses of detainee medical infor- mation for additional security purposes, including prevention of harm to any • identification of alleged victim and conditions of evaluation person, maintaining public health and order within a detention facility, and any • detailed account of allegations including torture methods and physical other lawful law enforcement, intelligence, or security-related activity.99 and psychological symptoms 76 | Ethics AbAndonEd Organizational structures and policies | 77

• record of physical and psychological findings guidance.” Even though general schmitt found the “cumulative effect” to be “degrading and abusive treatment,” he claimed al-Qahtani’s “treatment did not • interpretation of findings and recommendations rise to the level of prohibited inhumane treatment”103 (emphasis added). • identification and signature of the medical expert(s) the decision by the dod to exclude conditions of confinement and interroga- tion practices from its definition of abuse explains the surgeon general’s other- Annex 4 of the istanbul Protocol, which sets out these components, is append- wise incomprehensible survey finding that, “by any measure, medical personnel ed to this report. were exceptionally vigilant in reporting actual or suspected detainee abuse.”104 the quality and accuracy of official medical evaluations of torture and cruel, the same surgeon general’s survey showed that most medical personnel inhuman, or degrading treatment can be ensured through an effective monitor- were not trained in abuse reporting and that the definition of abuse and theater- ing mechanism that oversees the entire investigative process of alleged torture level policies on abuse reporting expected of medical personnel simply did not and cruel, inhuman, or degrading treatment, reviews individual reports, adopts exist until at least 2004 or 2005, as described in chapter 1. the survey noted remedial measures, and offers training. that existing policies on training and reporting did not state when training neither the istanbul principles nor any similar standards have been adopted, should occur, who was responsible for training, or even how to define who was recognized, or even cited by the dod. a health care provider.105 to address these gaps, the survey made three key recommendations on dEFiciEnciEs in AbUsE-rEPorting reporting abuse. First, it recommended standardized policies for documenting dirEctivEs And thE inAdEQUAcY oF rEForMs and reporting actual or suspected detainee abuse at all levels of command (dod, inadequate reporting of abuse was a product of the abdication of responsibil- U.s. Army, combatant command, theater, and individual subordinate units) ity by dod to provide adequate directives and instructions for medical and psy- and continued command emphasis on reporting. second, it sought standardized chological personnel. guidance for medical personnel on indicators of abuse and concise instructions the origins of the problem likely are related to the fact that immediately on how and to whom medical personnel should document and report actual or after 9/11, abusive interrogation and confinement practices were authorized by suspected abuse. third, it called for high-level guidance on the procedures for the military; many of the practices that constituted torture or cruel, inhuman, processing allegations of abuse not supported by medical evidence. one of its or degrading treatment under international and domestic law were deemed to specific recommendations in the last category was to employ “A health not be abuse. Military personnel at all levels were told that the interrogation Professional’s guide to Medical and Psychological Evaluation of torture,” which and confinement practices used were lawful, and indeed were reviewed and is based on the istanbul Protocol.106 approved by military lawyers. in the wake of the surgeon general’s survey and other internal investiga- disciplinary investigations conducted within the military confirm that nei- tions, reporting standards and procedures for medical personnel were estab- ther harsh forms of interrogation nor conditions of confinement were consid- lished by the dod for guantánamo, but they remain seriously deficient. Abuse ered abuse. When logs of the interrogation of Mohammed al-Qahtani reporting requirements for health professionals fall far below the detailed stan- (described in chapter 1) were publicly disclosed, an investigation was conduct- dards the istanbul Protocol requires and do not encompass many acts that vio- ed under the direction of general randall schmitt. the investigators acknowl- late the geneva conventions. Many of the instructions do not define abuse at edged the use of long periods of sleep deprivation, constant interrogation, and all. indeed, they continue the deficiency that acts against a detainee are not sub- the use of a leash to lead al-Qahtani around and perform dog tricks. they also ject to reporting if they are authorized by policy. noted that al-Qahtani was forced to wear a bra, told that he was a homosexual the first reporting policy applicable to guantánamo, established by and that other detainees knew it, compelled to dance with a male interrogator, southern command in August 2004, states in its entirety, “Medical personnel and required to stand naked with females present. general schmitt’s final who gain knowledge of physical or mental cruel, inhuman, or degrading treat- report noted that the interrogation was harsh, but concluded that “every tech- ment of detainees will report this cruel, inhuman, or degrading treatment to the nique employed against the subject…was legally permissible under the existing appropriate military authority.”107 in February 2005, the detention hospital at 78 | Ethics AbAndonEd Organizational structures and policies | 79 guantánamo issued a standard operating procedure applicable to medical per- acts inflicted on detainees and eliminates the vagueness of the earlier defini- sonnel.108 it provided that after an allegation of abuse, a hospital corpsman or a tion, the document’s omissions are just as significant. conditions of confine- nurse, not a physician, does an initial history and examination. no standards for ment and interrogation practices that were central to the experience of thou- such an examination are stated except that the corpsman or nurse is expected sands of detainees in U.s. custody, such as routine subjection to stress positions, to state the location and time of the incident, the mechanism of injury, and a isolation, bombardment with loud noise, sleep deprivation, and sensory depri- description of physical findings. At that point, an on-call provider, who could be vation, are not mentioned. Although these practices do cause injury and/or suf- a physician, nurse practitioner, psychologist, or physicians’ assistant, is required fering, they were elsewhere consistently deemed by the military and ciA, as to examine the detainee within four hours, again with no standards set out for well as the Justice department, not to constitute either torture or cruel, inhu- such an examination. the result is to be sent up the chain of command within man, or degrading treatment. by omission, the new guidelines leave those inter- the hospital and the hospital will report to higher authorities. pretations in place. the question of abuse reporting reached the highest level of medical author- Procedurally, according to the guidelines, a treating physician has no obligation ity for the military, Assistant secretary of defense for health Affairs dr. William to investigate abuse he or she encounters in clinical examination of detainees. the Winkenwerder. in mid-2005 he issued a policy that required health care person- guidance states: nel to report “a violation of standards” or “inhumane treatment” up the chain of While all medical staff members are responsible for immediately command, but inhumane treatment was not defined, nor were any procedures identifying and reporting potential and actual cases of abuse or assault for examinations specified.109 its reference to “violations of standards” implied to [the Criminal Investigation Division] and to the applicable [medical that adherence to operating procedures regarding detention and interrogation treatment facility] commander and higher headquarters, no further would be exempt from reporting. because the policy only applied to medical investigation is warranted beyond that necessary to render appropriate personnel providing treatment, behavioral science consultants were excluded. treatment, except in the case of rape or sexual assault, where medical dr. Winkenwerder revisited the question of abuse reporting a year later in a personnel will collect and process rape kits, as set forth below. It is the role formal instruction regarding medical care for detainees. the instruction adheres of [the Criminal Investigation Division] and/or the [military police] to to the 2005 approach to abuse reporting regarding acts that are “violations of investigate the allegation and collect evidence such as photographs.114 applicable standards.”110 As in prior directives, the instruction does not say what steps a health professional should take to inquire into suspected abuse, nor what While referral for criminal investigation may be appropriate, the procedures the threshold for reporting is, nor does it identify any obligation to connect clin- omit the critical role of physicians and other clinicians in examining detainees ical findings to abuse. the directive states that health providers must “have skills to identify abuse. Further, once a referral is made, a medical examination of the and knowledge to address the specific issues that arise in detention, including detainee by a third party health professional (not necessarily a physician)115 is the ability to recognize possible abuse of detainees and take appropriate steps to performed. Unlike the elaborate standards of the istanbul Protocol, the exami- report it,”111 but it does not say what the skills or issues are. Finally, it states that nation requirements are set out in a single sentence: to document medical training “on applicable policies and procedures” must be provided, but only injury, trauma, and findings and review the detainee’s overall health (in the case “basic training” is required for all military medical personnel and “additional” of alleged sexual abuse, there may be additional tests for pregnancy or sexually unspecified training for medical personnel involved with detainees. transmitted disease). the guidelines also do not impose an obligation to seek the U.s. Army Medical department responded to the surgeon general’s the origin or cause of the physical findings, an omission that has often charac- report by including requirements for reporting abuse as part of a lengthy set of terized medical examinations that report no clinical evidence of abuse in cases guidelines on medical support for detainee operations.112 the guidelines are in which torture or cruel, inhuman, or degrading treatment has occurred.116 deficient both substantively and procedurally. substantively, the definition of indeed, the standards discourage a medical examiner from making any infer- abuse includes physical acts that intentionally cause pain, injury, or suffering, as ences at all about abuse having taken place. the guidance states, “the medical well as emotional abuse (threatening or humiliating a detainee, for example) report of the medical examination will read ‘alleged’ or ‘suspected’ abuse and and sexual abuse.113 While the definition encompasses some of the egregious the detainee will be identified as the victim where indicated.”117 Finally, the 80 | Ethics AbAndonEd Organizational structures and policies | 81 guidance provides no oversight or quality assurance structure to ensure accura- A key mechanism needed to ensure health professionals’ adherence to pro- cy of reporting and indicate the command’s commitment to thorough investiga- fessional practice standards is the quality assurance and credentialing process. tions of reported abuse. the task Force has no information that these mechanisms have been employed in 2008, the dod established procedures for reporting “reportable inci- in the context of health professional actions toward detainees with respect to dents,” defined as, “Any suspected or alleged violation of dod policy, proce- abuse reporting, adherence to ethical standards regarding hunger strikers, and dures, or applicable law relating to intelligence interrogations, detainee debrief- other areas where dod protocols and policies conflict with professional ethical ings, or tactical questioning for which there is credible information.”118 it also standards and principles. affirmed the 2006 reporting approach established by the Assistant secretary of Within the military, credentialing of every licensed health professional defense for health Affairs in 2005 and 2006.119 As a result, interrogation meth- occurs at the time of initial appointment and at every reappointment, which ods and conditions of confinement that are authorized in policy remain exclud- occurs at least every two years (or whenever privileges are granted or ed from detainee abuse. changed).122 this process gives each military service a regular opportunity to behavioral science consultants, like other soldiers, have a duty to report review provider performance. Moreover, unlike in civilian life, a health profes- abuse.120 Although dod guidance revised in 2012 for behavioral science consult- sional in the military must be credentialed through a medical facility, regardless ants requires them to comply with this general duty to report abuse, it does not of whether he or she practices in that facility. though each military service has include abuse reporting among 14 subjects to be covered in the course of 168 a different mechanism for credentialing its providers, the requirements are uni- hours of training.121 the most recent guidance notes that, like others, bscts can form and set by the dod. avail themselves of other mechanisms such as the inspector general, criminal by law, health professionals within the military must also be licensed by a investigation organizations, and judge advocates. state.123 in the military, the commanding officer of a facility offering credentials the task Force concludes that the abuse reporting system for medical and is responsible for ensuring that anyone who provides health care in his or her psychological personnel is in need of reform, in particular to incorporate the jurisdiction, regardless of physical location, is licensed.124 As part of this standards and methods of the istanbul Protocol. process, the commander must query the national Practitioner data bank, which provides information on adverse actions taken against a licensed profes- sional by a state or credentialing entity.125 the credentialing requirements are The inadequacy of internal guidance linked to the dod’s centralized credentials and Quality Assurance system,126 and accountability mechanisms which includes regular, systematic, and comprehensive reviews of the quality of health care.127 As part of quality assurance, military treatment facilities are also in the wake of revelations in 2004 about the treatment of detainees in Abu ghraib required to identify events affecting patient care and outcomes that occur in prison, the U.s. military instituted several reforms germane to medical personnel. their facilities, conduct an analysis of their root causes, and form a corrective these include detailed guidelines for medical care of detainees, including a state- action plan for each event.128 ment of the standard of care for detainees, establishment of a system for mainte- disciplinary actions taken by the military against a practitioner, including nance of detainee medical records, limitations on the use of medical personnel to those affecting their privileges to practice, must be reported to the Federation of carry out routine body cavity searches on detainees, and a prohibition on exploit- state Medical boards, the national Practitioner data bank, and the dod’s quality ing detainee phobias in interrogation. in 2012, the Assistant secretary of defense assurance system.129 the reporting system is thus supposed to ensure reciprocal for health Affairs established an ethics oversight board for detention medical knowledge and reporting between states and the military, so that unethical or practices that includes one non-dod-affiliated representative. unprofessional conduct in one sphere is brought to the attention of the other. these are important steps to provide both guidance and clinical review of in the dod, any unprofessional or unethical conduct is grounds for taking practices. but the task Force concludes that reform has been insufficient to pro- action to remove or reduce credentials to practice or to take other administra- tect the human rights of detainees and ensure professionally acceptable conduct tive steps.130 the military services articulate the prohibition on unprofessional by medical and psychological personnel going forward. and unethical conduct in various ways, but properly applied, all of them cover 82 | Ethics AbAndonEd chAPtEr 3 the detainee abuse described in this report. For example, the U.s. Air Force, Hunger strikes and force-feeding navy, and Army focus on competence (medical knowledge, expertise, or judg- ment), conduct (unprofessional, unethical, or criminal), and impairment (med- ical conditions, mental health conditions, or alcohol/drug abuse/dependence) that may reduce or prevent the provider’s ability to safely execute his or her responsibilities in providing health care.131 there are multiple routes for reviewing the conduct of licensed health profes- sionals. the military services stress that all health care providers should partici- pate in monitoring and evaluation of issues in patient care. As such, peer evalua- tions, as well as recommendations obtained from credentials committees, may also be relied on in reviews of clinical privileges.132 Moreover, the privileging authority of each branch of service is expected to conduct a thorough evaluation At gUAntánAMo bAY, hunger strikes became the only form of protest avail- annually of the current competency of all non-privileged health care providers able to detainees against indefinite detention and the abusive conditions in assigned to operating forces. these include staff members who do not have clini- which they were held. hunger strikes have continued even as conditions of con- cal privileges but who are required to have a license, certification, or registration. finement have improved in the past few years; the dismal outlook for potential depending on the service, these individuals may include medical technicians, release—even for those who have been found not associated with terrorist acts corpsmen, pharmacists, clinical nurses (registered nurses, licensed vocational or organizations—remains as bleak as ever. some of the hunger strikes have been nurses), emergency medical technicians, dental hygienists, and others. joint actions, with dozens and in some cases over 100 detainees participating. Military policies that conflated legal and ethical standards, combined with hunger strikes have also taken place at other U.s. detention facilities overseas. bad-faith interpretation of those legal obligations, may have undermined the during some periods in 2002 and again in mid-2005, authorities at effectiveness of the otherwise robust disciplinary processes for countering guantánamo initially responded to hunger strikes by seeking to engage with detainee abuse, since adherence to the military’s rules and policies would have detainees and resolve grievances, but in each instance they eventually sought to likely sufficed to find that the health professional met all standards of practice. defeat the hunger strike through the use of force-feeding. then in late 2005, the once appropriate standards of conduct are in place, and if invoked appropri- department of defense (dod) introduced five-point (and sometimes six-point) ately and linked to quality assurance reviews, the military’s oversight proce- restraints for force-feeding, including the use of a restraint chair, which is still dures could promote ethical conduct toward detainees, discipline offenders, in use today, that binds a detainee’s arms, legs, and body for up to two hours at and become a venue for challenging health professional involvement in the a time while feeding takes place through a nasogastric tube. some detainees abuse of detainees. have undergone this procedure multiple times a day for months at a time. the task Force is aware of no precedent for using physical restraints to force-feed hunger strikers for more than a handful of episodes, much less for weeks and months (and in at least one case, years) at a time. the dod’s current policy, established in 2006 despite criticism from med- ical organizations and others for its use of force-feeding, is to characterize hunger strikes as acts of self-harm rather than as protests and to justify force- feeding as a life-saving intervention.1 As will be discussed in this chapter, however, the available evidence suggests that its policies and practices are directed toward ending protests by forcible breaking of hunger strikes. After reviewing the available record—which is incomplete but nevertheless illumi- nating—we on the task Force conclude that the dod’s practices, including 84 | Ethics AbAndonEd Hunger strikes and force-feeding | 85 the use of restraint chairs, depending on the exact circumstances in each case, confinement or lack of due process, gaining sympathy from the public, or put- amounted to either torture or inhuman and degrading treatment against detainees ting pressure on authorities to reform. engaged in protests. the very possibility of public engagement, though, is often seen by prison From the first hunger strikes at guantánamo bay, physicians, along with authorities as intolerable, even a form of blackmail, which they seek to avoid by nurses and other medical personnel, have played a central role in responding to ending the hunger strike as quickly as possible. As prolonged fasting can ulti- hunger strikes because of the medical implications of fasting and the medical mately become a medical problem, judicial or custodial authorities sometimes oversight of force-feeding. At guantánamo, the record available to us shows that call upon physicians not to perform in their appropriate professional roles in doctors responding to hunger strikes, acting under the direction of the military responding to the medical needs of hunger striking prisoners, but to participate detention center command and protocols, have not acted with professional in administrative or disciplinary measures involving intervention through the independence, have not adhered to national and international ethical standards use of harsh measures such as force-feeding. this leads to conflicts between on management of hunger strikers, and have not followed sound medical prac- prison custodians and the requirements of medical ethics. tice in responding to the needs of individuals under their care. instead, they there is a vast body of literature on hunger strikes.3 Perhaps the earliest have become agents of a coercive and counter-therapeutic procedure that for recorded hunger strike against a custodial authority was that of vera Figner, a some detainees continued for months and years, resulting in untold pain, suf- revolutionary in czarist russia in 1889.4 At the beginning of the 20th century, fering, and tragedy for the detainees for whom they were medically responsible. countless british and U.s. suffragettes on hunger strikes suffered ignoble force- this chapter begins with a brief review of the history of hunger strikes, a feedings, widely commented upon and criticized at the time, at the hands of description of the clinical consequences of food deprivation and their implica- authorities. Posters showed how these brave women were subjected to force- tions for medical management of hunger strikers, and the ethical requirements, feeding through a tube inserted by a doctor into their stomach, while they were established by the World Medical Association and U.s. medical organizations, held down, struggling, by medical staff. Mahatma gandhi, protesting against for the role of a physician in responding to hunger strikes among people in cus- the british government during the first half of the 20th century, is the figure tody. it then examines hunger strike practices by the U.s. military at most often associated with the contemporary idea of hunger strikes. guantánamo and elsewhere, including their evolution over time. the chapter in the past thirty years, hunger strikes have occurred on many continents. concludes with recommendations for dod policy changes that would both the most well known are the cases of bobby sands and fellow irish republic allow the dod to adhere to its obligations under common Article 3 of the Army members in 1981 during the “troubles” in northern ireland. that strike geneva conventions and the convention Against torture and permit physicians came at a time of escalating protests, violence, mass arrests of i.r.A. militants, to respond to a hunger striker in a manner consistent with the ethical standards accusations of brutality, and a political confrontation with british Prime and sound medical practices to which they are bound. Minister Margaret thatcher. in the midst of the strike, bobby sands was elected to Parliament. he and nine other hunger strikers died of starvation in the protest.5 After their dramatic deaths in Maze Prison, many hunger strikes took History, definitions, and clinical course place during the next 15 years in the Middle East, latin America, south Africa, and elsewhere, but none of them led to showdowns and loss of life as occurred A hunger strike by a prisoner generally refers to the use of prolonged refusal to in northern ireland. eat as a form of protest. it is typically designed to gain public attention and put in the 1990s and early 2000s, hunger strikes in turkey, which were accom- pressure on authorities to accede to strikers’ demands. A hunger strike repre- panied by violent assaults by authorities within the prison and solidarity hunger sents a prisoner’s effort to retain, or regain, some control over one of the few strikes by families, led to an unprecedented number of deaths—including those elements of power left to the prisoner while incarcerated. hunger strikes are of non-incarcerated family members who joined the fasts. At least 100 people usually most effective where there is some respect for basic human rights or died, most from prolonged, not acute, malnutrition.6 in the turkish strikes, not where there are political and diplomatic reasons to convey such respect.2 they all of the hunger strikers were volunteers and it remains to be fully disclosed can indeed be an effective tactic, generating media attention to conditions of exactly how many prisoners may have been “designated” by prisoner leaders as 86 | Ethics AbAndonEd Hunger strikes and force-feeding | 87 volunteers for the “death fasts.” What is known is that turkish authorities Any other form of prisoner fasting was deemed to fall short of a “serious” demanded that physicians force-feed the hunger strikers, but the turkish hunger strike. Prisoners who fasted but also took some nourishment or vitamins Medical Association took the position that it was unethical to do so if a compe- on the side were often deemed by authorities to be “cheating” on their strike, tent prisoner refused to eat, and so its members declined to participate. and were hence catalogued as not serious about conducting a hunger strike. despite the long history of hunger strikes, there is often confusion concerning this distinction was eroded when turkish hunger strikers consumed some what constitutes a hunger strike, as the term is used to cover a variety of situations nutrients, not to “cheat,” but to prolong the fast. they succeeded in prolonging in which a prisoner refuses food as a form of protest. two main types of people their lives far longer than irish hunger strikers did. thus, it is not possible to (and accompanying acts) can be distinguished: “food refusers” and true “hunger judge the seriousness of a hunger strike on any one criterion alone. Each con- strikers.” Food refusers are prisoners who, for any motive, declare themselves to text, and each person, must be judged individually. be on a hunger strike and may refuse to eat for a day or a few days. Food refusers, there are many varieties of fasting and different concepts of what consti- however, have no intention of maintaining the fast or willingness to hurt them- tutes eating, but for the purposes of this report in situating the kinds of hunger selves by their fasting. indeed, food refusal is quite common among prisoners, strikes that have occurred at guantánamo, only three types of hunger strikes7 who may voice complaints but never intend to go on a prolonged fast. Medical are important. staff who observe this category of prisoners sometimes call them “professional” • the dry hunger striker takes no food or water of any kind. this is often hunger strikers or people who engage in “nuisance fasting,” as it generates extra seen by both the hunger striker and the authority as a very dangerous work for the medical staff and the refusal is soon abandoned. by contrast, a form of hunger strike, as without water a body cannot survive more than hunger striker, as we use the term here, is a prisoner who uses fasting as a way of a matter of days at most, depending on climate and temperature. For a protesting, and is willing to place his health—and perhaps his life—at risk so as to hunger striker, this approach is counterproductive, as the hunger strike be heard by an authority. often a hunger strike is a response to the lack of any needs time to exert any effect. in reality, such dry hunger strikes never other meaningful way for his grievances to be heard and resolved. last longer than a few days, as the suffering from lack of water intake is the historical record shows that despite the willingness of a hunger striker objectively intolerable. custodial and political authorities, and the media, to suffer from the results of his acts, it should be understood that a hunger are often overly “impressed” by dry strikes, although there is no known strike is designed to achieve a purpose, usually an administrative, legal, or record of a hunger striker dying on a dry strike. political change, not to inflict self-harm. in other words, the striker’s goal is to live better in the world, not to die in it. bobby sands was as determined as • total fasting, as we use the term here, means no solid food of any kind, any hunger striker could be, but had he obtained concessions from the british and only ingestion of water. two liters of drinking water a day, with or government any time before his death, he would have taken nourishment. A without salt, preferably mineral water, will provide the amount needed to useful analogy may be to greenpeace activists who sailed their boats into the survive. in a still “rigorous” hunger strike, other nutrients are added to Pacific atoll where French nuclear tests were being carried out. they were not the water.8 seeking to get themselves blown up—they were most certainly not suicidal— • non-total fasting refers to a less rigorous hunger strike, and includes but they were willing to risk their lives, as a last resort, to publicize their practically any other type of fasting, for example, with vitamin and protest against nuclear weaponry. Authorities, judges, families, and lawyers, mineral intake, or sometimes with liquid nutrients or other supplements however, often mischaracterize hunger strikers’ acts as suicidal or demon- taken in addition to plain water. strating intent to self-harm. Understanding of what acts constitute a hunger strike has evolved. before the medical implications and thus the seriousness of a hunger strike depend the turkish protests at the end of the 20th century, hunger strikers were often on its duration and the physical condition of the hunger striker, not just on what classified as “serious” when, like bobby sands, they were effectively ingesting is ingested. A non-total hunger striker may be just as determined as a total one and only water, and thus putting their lives in jeopardy. the irish hunger strikers can lead to death as well, only at a much later stage, as was the case in turkey. fasted in this way and died after eight to ten weeks from acute malnutrition. 88 | Ethics AbAndonEd Hunger strikes and force-feeding | 89

the medical consequences of a hunger strike are often misunderstood. A or express agreement of the prisoner. in such a case it is “artificial feeding.” healthy, normally nourished adult, without any medical contraindication to Force-feeding is always artificial; artificial feeding may be freely accepted by the prolonged fasting, should experience no medical consequences when fasting prisoner and is then acceptable. totally (taking only water) for about 72 hours. After 72 hours, the onset of ketosis, the presence of metabolites known as “ketone bodies,” usually occurs.9 ketosis is often discernible clinically on the breath by what has been Ethical framework and clinical response described as a pear-like smell. ketosis subdues the voracious sensation of hunger, or “hunger pangs,” experienced during the first two to three days of the role of the physician in treating prisoners on hunger strikes is fraught with total fasting. it has been argued that, as a simple rule of thumb, total fasting difficulty. As noted above, prison officials often view the physician as the instru- for longer than 72 hours qualifies on metabolic grounds as a hunger strike.10 ment by which they can control the prisoner by literally forcing a prisoner to the purpose of this rule of thumb is to eliminate any confusion with short- end a strike. the physician’s own sense of responsibility for the well-being of the lived fasting. patient can also make it difficult to defer to a competent prisoner’s decision to At the other end of the spectrum, another rule of thumb governs when total fast, as ethical standards demand. At the same time, the physician must ensure deprivation of food (ingesting only water) becomes fatal. during the 1981 that the prisoner’s decision is voluntarily or freely made, not entered into hunger strikes in northern ireland, medical reports showed that death because of pressures from other prisoners or because of a mental condition. the occurred sometime between 55 and 73 days.11 similar cases have confirmed physician must also counsel the patient, not just about the medical conse- this range, which takes into account differences in initial physical constitution quences of not eating, but about available options. the interaction between and individual adaptation. in between these extremes, experience suggests physician and prisoner is complex and requires ongoing, individualized clinical that the fifth or sixth week, the “ocular motility”12 phase (when deficiency of judgments according to ethical standards. the vitamin thiamine results in tell-tale abnormal movement of the eyes), is particularly difficult for the hunger striker. by the sixth or seventh week, thE World MEdicAl AssociAtion’s hunger strikers enter the final stages of fasting, during which they may no dEclArAtion oF MAltA longer be capable of clear discernment. survival for more than 10 weeks of to help them navigate the complex requirements while upholding ethical stan- total fasting is practically impossible. dards, the World Medical Association has provided both an ethically principled in short, a “72–72” maxim is helpful: a minimum of 72 hours for any fasting framework for and guidance to physicians caring for prisoners on hunger to be taken seriously as a hunger strike and a maximum of 72 days for the length strikes. its first guidance came in the declaration of tokyo in 1975, which con- of time a hunger striker practicing a total fast can hope to survive. this knowl- cerns medical involvement in torture, and stated that: edge is indispensable for physicians in counselling and determining appropriate Where a prisoner refuses nourishment and is considered by the physician medical care. For example, the hunger striker may agree to add thiamine and as capable of forming an unimpaired and rational judgment concerning glucose to water intake, which can prolong the protest. the consequences of such a voluntary refusal of nourishment, he or she Finally, clarity is also necessary on the meaning of force-feeding. We use the shall not be fed artificially. The decision as to the capacity of the prisoner term to mean that feeding, usually through a nasogastric tube (as described to form such a judgment should be confirmed by at least one other below), is involuntary, undertaken against the wishes of the person subjected to independent physician. The consequences of the refusal of nourishment it. Force-feeding may be, but is not usually, accompanied by the use of physical shall be explained by the physician to the prisoner. 13 restraints. Force-feeding implies some form of coercion, which can take many forms. Prisoners who have to accept nasogastric feeding because they know or the provision was not an attempt to address hunger strikes generally, but fear they will be punished or have the tube forced into them cannot be said to rather the physician’s responsibilities where a prisoner being tortured protested “accept” being fed. by contrast, nutrition may be supplied to a hunger striker against his treatment by going on a hunger strike.14 the declaration provides that through means other than eating, such as through tube-feeding, with the tacit a physician should not be obliged to administer nourishment against the prison- 90 | Ethics AbAndonEd Hunger strikes and force-feeding | 91 er’s will and thereby effectively revive him for more torture. the use of the word principle of beneficence, and concludes that when a conflict exists, the auton- “artificially” instead of “forcibly” to refer to the use of force in feeding a hunger omy of the informed, competent patient prevails as the governing principle. striker via nasogastric tubing was imprecise and did not take into account the dif- this is because the obligation of beneficence “includes respecting individuals’ ference between the two terms explained above. “Artificially” in the tokyo wishes as well as promoting their welfare,” and does not necessarily involve declaration meant, but did not clearly convey, that feeding against the prisoner’s “prolonging life at all costs, irrespective of other values.”19 the obligation of will was proscribed. nevertheless, the 1975 declaration was correctly interpreted avoiding harm “means not only minimising damage to health but also not forc- by many groups, including the American Medical Association, to prohibit force- ing treatment upon competent people nor coercing them to stop fasting.”20 feeding, even though the term itself was not used.15 thus, competent individuals who are informed and able to understand the A hunger strike in south Africa during the 1980s led doctors there to seek implications of their choice should not be treated against their will. they can further guidance from the World Medical Association. As a result, the associa- refuse food and state their wish to refuse food in the event they lose mental tion drew up the declaration of Malta in 1991, which defined the different capacity to make decisions.21 forms of fasting, the role of doctors, and the effects of “terminal” hunger the World Medical Association declared that force-feeding a competent strikes. the declaration of Malta affirmed the principle of informed consent, hunger striker is never permitted, as it violates the principles set out above as required doctors not to be involved in efforts to coerce the prisoner to end the well as the principle of informed consent. it stated: strike, and urged full communication with the hunger striker about its conse- Forcible feeding is never ethically acceptable. Even if intended to benefit, quences and dangers. the declaration did not explicitly discuss force-feeding, feeding accompanied by threats, coercion, force or use of physical advising only that in the case of a prisoner who became confused or lapsed into restraints is a form of inhuman and degrading treatment. Equally a coma, the physician should use his or her judgment whether to feed or pro- unacceptable is the forced feeding of some detainees in order to intimidate vide further treatment, taking into account the prisoner’s prior decisions and or coerce other hunger strikers to stop fasting.22 expressed wishes. the force-feeding question was not addressed because, at the time, the use the use of the phrase “inhuman and degrading treatment” conveyed that in of coercion to force-feed prisoners was rare. during the northern ireland the World Medical Association’s judgment, force-feeding accomplished by hunger strikes in 1980 and 1981, the question of force-feeding did not even force, threat, or coercion, including the use of physical restraints, is not only an arise. british doctors did not envisage the possibility “that there [would] be any ethical breach but, in cases of armed conflict, a violation of common Article 3 circumstances where the due process of law would require a physician to force- of the geneva conventions of 1949 and the convention Against torture. feed anybody against their will.”16 thus a clear position for the upholding of Furthermore, the World Medical Association made clear that, “it is ethical to patient autonomy was taken in these northern ireland hunger strikes. Force- allow a determined hunger striker to die in dignity rather than submit that per- feeding was also discredited after a mistake in the Middle East in the early son to repeated interventions against his or her will.”23 1980s that resulted in the death of two prisoners who were fed forcibly, as liquid nutrients were introduced into the trachea rather than the esophagus. After that thE iMPortAncE oF doctor-PAtiEnt incident, force-feeding, already rarely invoked, practically disappeared as a rElAtionshiPs bAsEd on trUst response to hunger strikes. the declaration of Malta accompanies its ethical principles with clinical guide- later experience with hunger strikes, especially the confrontation between lines that, along with other sources, provide valuable instruction on how the the national medical association and government in turkey, and then the physician should respond to a hunger strike.24 the physician’s role is not just explicit policy of force-feeding prisoners at guantánamo, led the World about evaluating the detainee’s medical and psychological condition, warning Medical Association to comprehensively revise the declaration of Malta in the detainee about the consequences of fasting, and monitoring the detainee’s 2006.17 its revised policy was accompanied by a glossary and background caloric intake, blood pressure, weight-loss, and other medical consequences of paper.18 Malta 2006 explicitly addresses how the principle of patient autonomy fasting. the physician’s role is even more fundamentally one of advising, coun- (informed consent and the right to refuse treatment) harmonizes with the seling, listening, and assisting the prisoner in clarifying goals, desires, and deci- 92 | Ethics AbAndonEd Hunger strikes and force-feeding | 93 sions. to perform this role, there was must be a true doctor-patient relationship they may have, to explain how fasting and metabolism work, and above all to lis- based on trust. As Malta 2006 declares: ten to and maintain a constant line of communication with prisoners. A physi- cian has to convey genuine concern for health and for providing professional Fostering trust between physicians and hunger strikers is often the key to care. this stance in most cases should counterbalance any qualms or legitimate achieving a resolution that both respects the rights of the hunger strikers fears a hunger striker may have about a doctor’s role. one aspect of this role is and minimizes harm to them. Gaining trust can create opportunities to to ensure that the prisoner’s dignity is not compromised and to intervene with resolve difficult situations. Trust is dependent upon physicians providing authorities to ensure that the hunger striker is not placed in a bleak or demean- accurate advice and being frank with hunger strikers about the limitations ing environment as a means of punishment. of what they can and cannot do, including where they cannot guarantee Physicians also must ensure their own clinical independence.28 this means confidentiality.25 that they may neither “allow third parties to influence their clinical medical Establishing trust requires continuity of care between the physician and judgment” nor “allow themselves to be pressured to breach ethical principles, detainee. the physician must convey to the patient the fact that he or she is such as intervening medically for non-clinical reasons.”29 Physicians have to there to attend to medical needs, to answer questions, and to inform the hunger establish, within the custodial hierarchy, that they must have a free hand in striker about any medical facts that are relevant to the particular case. trust is dealing with all matters relating to health as well as any medical interventions. difficult in any prison environment,26 so special effort must often be made to they cannot take orders that preclude the exercise of or go against medical judg- provide the basis for and to establish it. ment, let alone medical ethics. similarly, they must assure prisoners that confi- creating and maintaining trust precludes any role of the physician as an dentiality will be respected, and must have confidence that the authorities will agent of or acting on behalf of the authorities to convince the hunger striker to cooperate, for example, by allowing consultations without guards present (or, if stop the strike or to threaten the striker with adverse consequences of a refusal. security procedures demand their presence, out of earshot).30 Any imposition by authorities of a “medicalized” solution to a hunger strike by the physician’s role in the hunger strike begins when assessing what the asking a physician to seek to induce a prisoner’s compliance with authorities’ individual hunger striker’s intentions are and how resolute the striker seems to requirements or tell the hunger striker to either end the hunger strike or be be about continuing.31 the voluntary nature of the hunger strike is key; whatev- force-feed, undermines trust, perhaps irretrievably. the bond of empathy er decision a hunger striker makes has to be the striker’s own, as bodily integrity, between the doctor as healer and his or her patient is also destroyed when the right to refuse treatment, and ultimately life, are involved. physicians act in security or intelligence roles, such as through participation in A hunger striker’s decisions must be made without coercion from any indi- coercive interrogations.27 vidual or group, such as fellow prisoners, family, or political or religious such roles not only potentially implicate physicians in cruel, inhuman, or groups.32 such pressure can be intense, and it is paramount that the doctor degrading treatment or torture but prevent them from acting as intermediaries, ascertains that the hunger striker can make all-important decisions freely. the or possible catalysts, towards compromise, helping to reach a calm solution to physician should seek to answer some key questions: how resolute is the the conflict. in cases of extreme distrust, like that at guantánamo as described hunger striker? how determined is the striker to push his protest through? in chapter 1, playing a counselling role may be problematic for staff physicians. can the striker accept a compromise solution that would allow the fasting to Even if physicians have not participated, even passively, in torture or cruel, stop? What is behind the protest? is there some misunderstanding that could inhuman, or degrading treatment, they are likely seen by detainees as being part be easily corrected so as to defuse the situation? is there peer pressure from of a coercive system, thus making the possibility of establishing a relationship other prisoners? or pressure from within the group of hunger strikers them- of trust impossible. in such cases, independent physicians can be brought in by selves when it is a collective action? authorities to fill this essential clinical role. As part of this assessment, the physician needs to take a medical history and thus, from the start, physicians should convey to the prisoner that they are conduct an examination to determine the prisoner’s competency and whether not there as prison officials to try to convince hunger strikers to stop their his food refusal is voluntary.33 if refusal of food is a manifestation of some men- protest. Physicians are there to see to prisoners’ health, to answer any questions tal disorder, such as depression, psychosis, or anorexia, then the situation is 94 | Ethics AbAndonEd Hunger strikes and force-feeding | 95 not a hunger strike, and the physician should direct care at treating the under- terms of the hunger strike, nor to intercede on behalf of either party, but rather lying disorder or mental illness. For this reason, a comprehensive assessment to determine the hunger striker’s intent and what possible alternatives to pro- of the physical and mental health of the fasting person is an essential feature longed total fasting might be acceptable. For example, the hunger striker may of the evaluation for determining the proper management of a hunger strike. be willing to lower the bar of contention so that a compromise can be reached An accurate assessment of both the physical and mental health of a hunger with the authorities by taking vitamins and perhaps other nutrients to allow striker requires a precise and candid history, which in turn requires the time for negotiations. in this way the physician can act in the hunger striker’s patient’s collaboration. best personal health interests, while respecting his freely taken decisions. in it is also critical for the physician to distinguish between behaviors some cases, the hunger striker may agree to receive artificial feeding, thus intended to kill oneself and behaviors undertaken to make a statement or allowing him not to lose face (by quitting the hunger strike) while keeping him protest that could risk death. though most hunger strikers do not have a out of danger until a solution is found. mental disorder, an examination of a hunger striker’s psychiatric and medical the intermediary role can be highly effective. in one case, an international history may reveal factors affecting decision-making abilities and cognitive committee of the red cross (icrc) physician played a key role in responding processes.34 on the other hand, the examination may show that the hunger to a hunger strike in a latin American country, persuading the hunger strikers striker is unimpaired and pursues a total fast with a positive, political goal to accept iv lines with vitamins without compromising their message during that, in his eyes, will benefit himself or his community, even though he may the strike. A representative of the catholic church ultimately brought about a need to die if his plea is not heard.35 the turkish prisoners who went on peaceful resolution. repeated and prolonged hunger strikes in the late 1990s did not want to die, in a collective hunger strike, as frequently has taken place at guantánamo, the even if they were provocatively vociferous in their action, declaring they situation is more complex, as a small number of “hard liners,” or sometimes even were on “death fasts.”36 just one leader, may be unyielding and make it difficult for any other hunger strik- in performing these clinical assessments, physicians should not let their er to deviate from the group’s plan. A detainee may fear taunts or reproaches from overall vision of the situation be obscured by an unwarranted concern that the other prisoners, the shaming of his family, or even loss of respect from guards, if hunger striker will soon die. As noted above, there are at least thirty full days he backs down. the physician is obligated to seek to protect or ameliorate the before the “ocular” phase begins, time enough for the physician to play an effects of such coercion.40 the key is for the physician to speak to each hunger appropriate role. striker individually. if a relationship of trust has been attained, some members of Physicians should also counsel prisoners on the clinical consequences of the group may admit in confidence that they do not want to participate. one fasting, showing respect for the prisoners’ autonomy and right to make their potential response is for the physician to help separate hunger strikers from each own decisions regarding eating and feeding. hunger strikers should be given other. this does not mean isolating them or putting them in solitary confinement. accurate clinical information about the foreseeable effects of fasting, such as once the peer pressure is relieved, the road to reconciliation is open. the physi- that when they stop eating, underlying health problems are likely to come to the cian may also arrange for the hunger striker to be transferred to the sick bay, foreground. they should be asked to indicate whether they would accept treat- where (voluntary) “therapeutic feeding” may be undertaken. ment or pain relief for these underlying problems as well as what their wishes As the fast proceeds, the physician should continue to monitor the hunger are regarding food and medication should they become mentally impaired as a striker’s physical and mental condition. Usually, when the hunger strike ends, result of the fast.37 the physician can help the hunger striker prepare an the physician can manage the introduction of food to ensure protection of the advance directive to ensure that the prisoner’s wishes are respected, and the individual’s health. the physician, of course, must attend to the prisoner’s med- physician can keep the directive confidential.38 the physician should also coun- ical needs, but also defer to the prisoner’s wishes if he is competent and his deci- sel the prisoner about options such as increasing fluid intake, taking nutrients, sions are not made under duress. the declaration of Malta is clear that it can be and other steps to preserve his health during the fast.39 preferable and ethical to allow a prisoner to die with dignity, if it is clearly the Another and more difficult role for the doctor is to serve as medical interme- individual’s stated wish to refuse any treatment, rather than requiring him to diary if consistent with the patient’s wishes. the purpose is not to negotiate the submit to repeated interventions against his will.41 96 | Ethics AbAndonEd Hunger strikes and force-feeding | 97

the final role of the physician is effective communication with authorities. Hunger strikes at Guantánamo Bay the physician can start by assuring authorities that they have at least four weeks and the evolution of U.S. policy to address the underlying causes of the hunger strike before serious health issues arise and persuading them that force-feeding is not necessary to keep the 2002–2005 hunger striker alive. this step can also enable the physician to assure the hunger in late February 2002, weeks after the prison opened at guantánamo bay and striker that no force-feeding is going to be used, which in turn reinforces trust with tensions running high between prisoners and guards after protests and a in the physician—the opposite of what happens when physicians become riot, a group of prisoners went on a hunger strike. Within two days almost 200 involved in breaking hunger strikes.42 in playing this role, the physician can help detainees had skipped a meal. the commanders and medical staff lacked rules, avoid the escalation and confrontation that ensues when authorities take harsh guidance, or a strategy for responding.47 the medical leadership understood and hasty action, leading the hunger striker to become potentially more intran- that hunger strikers could survive for many weeks, but the strike was neverthe- sigent than he ever intended. less seen as a challenge to prison authority, interrogations (as prisoners would All too often, however, authorities and even medical supervisors view the decline to speak during questioning), and public relations.48 the facility’s com- role of the doctor as exclusively to monitor medical signs and symptoms, to mander, Marine Major general Michael lehnert, with help from the icrc, inform the hunger striker that fasting can ultimately result in harm to him, decided to seek to address the prisoners’ concerns personally by respectfully sometimes irreversible, and to advise him of the different possible interventions interacting with the hunger strikers while separating the strike’s leaders from that can reduce the risks of irreversible harm. this narrow role ignores the roles the others. Most detainees abandoned the fast quickly, and the number of strik- the physician can play early in the process when better solutions exist, as it ers was reduced to the low teens. soon thereafter, however, general lehnert focuses exclusively on what consequences are late in the fast.43 was relieved of command, and the response by the new commander to hunger the international council of nurses, a federation of more than 130 national strikes was more aggressive. by May 2002, two detainees are reported to have nursing associations globally, has addressed hunger strikes, albeit in abbreviated been force-fed.49 fashion, in policy statements on prisoners and detainees. in 1998, the council’s Another coordinated hunger strike took place between october and brief policy statement on the nurse’s role in treatment of prisoners and december 2002. Although the task Force has not been able to learn whether detainees did not address hunger strikes directly, but stated that, “Prisoners and the dod had policies on hunger strikes in place at that time, we do know that detainees have a right to refuse treatment or diagnostic procedures and to die it had policies in place by 2003.50 Under those policies, a detainee at with dignity and in a peaceful manner.”44 in a 2011 statement, however, the guantánamo who had missed nine consecutive meals (about 72 hours) or had council specifically addressed the nurses’ role in hunger strikes, stating that, not drunk fluids for 24 hours was to be segregated and evaluated daily by a med- “Prisoners and detainees, including those on hunger strike, have a right to clear ical officer. it is not clear from available documents whether psychological eval- and sufficient information; to consent for or refusal of treatment or diagnostic uations were conducted to determine whether any detainees suffered from a procedures; and to a dignified and peaceful death.”45 While hardly as detailed as mental disorder that rendered them incapable of making “rational, reasonable” the World Medical Association standard, the nurses’ position is unequivocal in decisions concerning the hunger strike.51 one standard operating procedure its respect for the decisions of the prisoner and, by implication at least, opposes called for “supplemental feeding” when the detainee’s weight reached 85–90 the participation of nurses in forced feeding. percent of ideal body weight.52 A later medical standard operating procedure, some prison authorities, in collaboration with health agencies, follow the issued in August 2005, declared that “every attempt will be made to allow approach described in this section. in the United kingdom, for example, the detainees to remain autonomous up to the point where failure to eat or drink department of health, in conjunction with the Ministry of Justice’s national might threaten life or health.”53 offender Management service and the home office’s Uk border Agency, pub- According to an october 2005 declaration filed in a judicial proceeding by lished guidelines for the clinical management of people refusing food in immi- captain John Edmondson, commander of the Joint Medical group54 at gration detention centers and prisons that stressed the physician’s independent guantánamo from July 2003 to January 2006, where a physician deemed inter- and supportive role.46 vention necessary, the physician was to make a recommendation for “involuntary 98 | Ethics AbAndonEd Hunger strikes and force-feeding | 99 intravenous therapy” or enteral feeding, which consists of placing a tube through all five camps, reportedly involving 200 prisoners, over complaints of lack of the individual’s nose to the stomach.55 captain Edmondson stated that lubricants due process in obtaining release, lack of respect for the koran, and inhumane were used to insert the tube and non-narcotic drugs were administered to ease living conditions.65 the commander of the Joint detention group, colonel discomfort or pain from insertion, although in rare instances they administered Mike bumgarner, decided to negotiate with detainee leaders, resulting in an narcotic drugs for pain.56 According to captain Edmondson, no medical corps- end to the hunger strike on July 28, 2005, based on his commitments to man or physician’s assistant performed these roles.57 this claim, however, is con- bring the detention center into compliance with the geneva conventions.66 tested, as detainees have alleged that non-medical personnel such as guards were According to media investigations, bumgarner made serious efforts to involved in inserting and removing feeding tubes. captain Edmondson also address the detainee’s complaints after negotiating with six detainee leaders. described the counseling role of physicians as informing the detainees of the con- however, in August 2005, the negotiations fell apart. Major general hood, sequences of not eating and alternatives to involuntary feeding.58 the Joint task Force commander, restricted communication among the this form of medical intervention was called “involuntary feeding” by the detainee leaders and detainees were angered by violent treatment of a authorities, since through october 2005, the detainees were said to accept the detainee by a quick-reaction force, a special group of guards who intervened nasogastric tube without force or restraints, though it is not clear whether this forcibly in cases of alleged security breaches, and other incidents.67 in two of acceptance represented acquiescence or mere failure to physically resist. the camps a riot broke out, in which detainees severely damaged their cells. captain Edmondson’s declaration states that virtually all hunger strikers did not the detainee negotiator accused the authorities of and a new hunger resist insertion of feeding tubes and only 10 detainees had been subjected to the strike began. According to their lawyers, between 131 and 210 detainees par- use of four-point restraints to accomplish insertion. he also stated that flow of ticipated in this strike, though by october the number of was reduced to nutrients through the tube itself was voluntary and controlled by the detainee.59 about 24 people.68 Meanwhile, colonel bumgarner continued to try to he further stated that detainees who remained in their cells came voluntarily to improve living conditions while showing decreased tolerance for what offi- the door and handed the tube to a nurse, who connected the bag of nutrition to cials saw as disruptive behavior. the tube. he stated that detainees could walk around their cells in the process.60 Fearful that some of the detainees would die, authorities brought in addition- the decision to feed detainees involuntarily, however, was restricted to the al medical staff from naval hospitals in Florida to assist in tube-feeding hunger Joint task Force commander of the detention facility, a non-medical person; strikers. during a visit of medical organizations to guantánamo in october others, including medical staff, were prohibited from commencing forced feed- 2005, the groups were told that 25 prisoners were currently on a hunger strike, ing without the commander’s approval.61 the administrative (and political), 22 of whom were being fed by nasogastric tube, most of them while in their rather than medical, nature of the decision is indicated not only by the need for cells and almost all of them acquiescing to the procedure.69 written approval of the commander but by the requirement that he notify the detainee accounts from this period, many of which are contained in decla- commander of the U.s. southern command, who in turn was required to rations from court cases, dispute some of the statements in captain inform appropriate Joint staff and dod offices,62 i.e., the highest levels of mili- Edmondson’s declaration. For example, as of 2005, official practice was to use a tary and civilian command. size 10 French or a size 12 French feeding tube, one-eighth and one-seventh of captain Edmondson stated in his declaration that the process of force-feed- an inch in diameter, respectively, though captain Edmondson acknowledged ing takes two hours.63 guards are instructed to weigh the detainee daily and that for two days larger tubes were used as well.70 on insertion of the nasogas- report the quantities of food and water the detainee has taken. once enteral tric tube the patient is supposed to have been offered viscous lidocaine (a topi- feeding is initiated, the physician is permitted to order it to continue. cal anesthetic) for the nostril and throat and the tube is supposed to have been According to the policy, if the detainee eats nine consecutive meals, enteral sterilized and lubricated. one detainee claimed that the extraction of the tubes feeding is discontinued. was so painful that it sometimes resulted in blood gushing out, leading to faint- through mid-2005, there were few reported instances of involuntary ing. one detainee alleged that lesions and bleeding occurred when guards held feeding at guantánamo.64 in June and July 2005, however, after a long period him by the chin and hair while strapped down as a medical staffer “forcefully of tension between detainees and authorities, a hunger strike took place at inserted the tube in his nose and down his throat.”71 100 | Ethics AbAndonEd Hunger strikes and force-feeding | 101

Abdul-rahman shalabi claimed that a U.s. navy doctor inserted the nasogas- 2005–2006: thE introdUction tric tube in his throat and kept moving the tube up and down until finally he oF roUtinE UsE oF rEstrAint chAirs started violently throwing up blood. the declaration of his lawyer states: during the hunger strikes in the fall of 2005, officials concluded that the “Abdul-rahman tried to resist what he called the ‘torture’ from this physician hunger strikers were not suicidal78 or in immediate medical danger.79 some offi- but he could not breathe. he was suffocating and when the tube that had been cers, however, believed that the detainees who were being force-fed were treat- jabbing him internally was finally removed, it was full of blood.”72 some ed too leniently, even coddled, as they lived in a comfortable hospital with air- detainee accounts describe nasogastric tubes being forcibly inserted with no conditioning and had a choice of lozenges to ease the pain of the feeding tubes. local anesthesia or sedative.73 they also believed the detainees were trying to undermine the force-feeding the task Force cannot resolve the conflicts in the accounts between process. According to captain Edmondson, on october 1, 2005, a detainee detainees and captain Edmondson. Although the accounts differ with regard removed his feeding tube and incited seven other detainees to do the same. A to the degree of pain or discomfort associated with practices, there is some few of the detainees figured out how to siphon food from their stomachs by agreement, e.g., that bleeding and nausea sometimes occurred and there was sucking on the tubes, others vomited after they had been fed, and some were one case of loss of consciousness by a detainee. Another example of some becoming seriously malnourished. captain ronald sollock, who became the confluence of accounts, though again with differences in the consequences, Joint Medical group commander in January 2006, later stated that the hunger concerns the re-use of feeding tubes. the guantánamo Joint task Force stan- strikes unduly burdened the medical staff, who he claimed often had to spend dard operating procedure in 2005 required the use of new sterile nasogastric 15 hours a day feeding detainees.80 tubes at every feeding,74 but a detainee’s lawyer recounts one report that “in captain sollock characterized the approach to hunger strikes at the time as front of guantánamo doctors—including the head of the detainee hospital— a “failure” because detainees tried to remove their nasal tubes or struck medical the guards took a nasogastric tube from one detainee, and with no sanitiza- personnel administering feeding.81 the government argued in court challenges tion whatsoever, re-inserted it into the nose of a different detainee. When to force-feeding that “some” hunger strikers were assaultive during attempts to these tubes were re-inserted, the detainees could see the blood and stomach feed them enterally,82 though captain Edmondson’s 2005 declaration character- bile remaining in the tubes.”75 the account names the medical person who is izes that number as very low. alleged to have stood by and watched these procedures with no intervention From the record available to the task Force, it appears that in late 2005, dis- (the publicly released record is blacked out). captain Edmondson’s declara- satisfaction with handling of hunger strikers, including the forms of force-feed- tion, while denying that guards had a role in insertion of nasogastric tubes, ing then in place, led policy and practice in responding to hunger strikes at acknowledged that tubes had been re-used for the same detainee, but said guantánamo to change dramatically. in early december 2005, guantánamo that the practice was stopped, and also that minor bleeding and nausea could administrators brought in five restraint chairs that they claimed were needed to occur on insertion or removal of the tubes.76 prevent detainees from disgorging food and to make force-feeding more con- there is, however, a major difference between captain Edmondson’s and trolled; another 20 restraint chairs arrived in January. A court later noted that detainees’ accounts on the role of guards, as detainees dispute captain the government acknowledged that the restraint chairs used straps to tightly Edmondson’s unequivocal claim that guards had no role in inserting and restrain the detainee’s arms, legs, chest, and forehead.83 removing tubes. one detainee reported that doctors were present as riot once the detainee was immobilized in a restraint chair, medical staff would guards removed nasogastric tubes from a detainee’s nose by “placing a foot insert the nasogastric tube via the esophagus into the stomach and administer liq- on one end of the tube and yanking the detainee’s head back by his hair.”77 uid nutrients over a period of around 30–50 minutes. the detainee would often given the guards’ other roles in force-feeding, including forced cell extrac- remain immobilized for a further 60–90 minutes. this additional period was tion (the use of a group of guards to forcibly remove a detainee from his cell), introduced to prevent the prisoner from using the outside end of the nasogastric the task Force finds it credible that guards were involved in inserting and tube as a “straw” to siphon off the contents of his stomach before it was digested. removing tubes in some cases. the force-feeding procedure was performed twice a day on each detainee. it was 102 | Ethics AbAndonEd Hunger strikes and force-feeding | 103 a drastic change from the process captain Edmondson described in his october 460 doctors in here to take care of you.’ they will not succeed.”91 rear Admiral 2005 affidavit, moving from involuntary or forced feeding, which itself was not harry harris, Jr., who took over command of the Joint task Force in April 2006, consistent with the original declaration of Malta, to a regime of forced feeding was emphatic that hunger strikes were a tactic in trying to force the United combined with physical restraints. At guantánamo the use of restraints in the states to back down in its fight against al Qaeda and would not be tolerated. course of force-feeding became routine, as the government acknowledged and a “the will to resist of these detainees is high. they are waging their war, their court later found, stating that “it is standard policy to use the restraints on all jihad against America, and we just have to stop them.”92 hunger striking detainees.”84 captain sollock, the chief physician, concurred. “We had to take steps to the use of the restraint chairs represented more than a means to address prevent that, but we only do what is medically necessary in a humane and com- detainees’ resistance to eating or improved security. From the evidence available passionate manner.”93 Although officials also claimed the restraint chair was to the task Force, it appears to have added a punitive dimension to force-feed- essential to prevent detainees from dying, two medical officers told the New ing. in december 2005, a U.s. navy forensic psychiatrist and three experts from York Times that only a few of the detainees subject to its use were in immediate the bureau of Prisons who were brought in to assess the situation argued that medical danger.94 the hunger strikes were a discipline issue and that the failure to eat was a viola- the newly punitive response to hunger strikes was endorsed by senior offi- tion of camp rules.85 in addition to employing the restraint chair, hunger strike cials at the dod. dr. Winkenwerder, the highest-level civilian official involved, procedures require placing the detainee in administrative segregation in a sin- responded to criticism of the practice by ignoring the issue of restraints alto- gle occupancy cell;86 some of the detainee leaders were sent to another unit at gether, instead seeking to frame the issue as pitting the preservation of life guantánamo where they were kept in isolation 22 hours a day.87 lawyers for against the death wishes of detainees: “there is a moral question. do you allow detainees said that other measures introduced around this time included plac- a person to commit suicide? or do you take steps to protect their health and ing hunger strikers in uncomfortably cold air-conditioned isolation cells, preserve their life?”95 other officials were more forthcoming about the purpose depriving them of comfort items like blankets and books, and using riot-control of the restraint chairs. in an interview with , general bantz soldiers to insert the nasogastric tubes.88 these measures were applied to the craddock, head of the U.s. southern command, while claiming that the prisoners without their having committed any disciplinary offense, other than restraint chairs were “not inhumane,” “left no doubt, however, that the author- the pursuit of their hunger strike. ities had decided to try to make life less comfortable for the hunger strikers, and detainees also reported that the restraint chair was invoked as a threat if that the measures were seen as successful.”96 Admiral harry harris, who took they continued a hunger strike. one detainee, Fawzi al-odah, reported that an over command of guantánamo in April 2006, characterized detainees commit- officer read him an order from general Jay W. hood that hunger strikers who ting suicide as engaging in asymmetric warfare. he told TIME, “We are humane declined to drink liquid formula voluntarily would be strapped into metal chairs and compassionate, but if we tell a detainee to do something, we expect the and tube-fed. the detainee told his lawyers he heard “screams of pain” from a detainee to do it.”97 hunger striker in the next cell as the nasogastric tube was inserted and so aban- the restraint chairs initially had their intended effect: the number of hunger doned his hunger strike.89 Another lawyer reported that his client, Jum’ah al- strikers declined from 84 to 4 by the end of december 2005.98 by February dossari, “understands that officers told the hunger strikers that if they chal- 2006, the New York Times reported that the restraint chair had been used to lenged the United states, the United states would challenge them back using force-feed 35 detainees. officials claimed that their strategy was working. these tactics.”90 Whether it was indeed working remains uncertain, as in the spring of 2006 colonel bumgarner, who had sought to negotiate with the detainees and there were more riots and then three deaths that the dod has characterized as improve conditions, now embraced the more coercive approach to counter coordinated suicides at guantánamo. what he saw as the detainees’ strategy to close the prison and secure their the introduction of the restraint chair and accompanying means of coercion release. he told Time magazine, “We used to over-react, and the detainees saw introduced an entirely new chapter in the history of responses by prison admin- that we got worried if they were not eating.“ but, he said, “now we have a sys- istrators to hunger strikes. Prisoners had been force-fed in the past, at tem. i tell them, ‘have at it. if you want to have 460 hunger strikers, we’ll get guantánamo and elsewhere, in the sense that eating was involuntary, a practice 104 | Ethics AbAndonEd Hunger strikes and force-feeding | 105 itself deemed unethical by the World Medical Association and other authorities. but for some detainees, force-feeding was experienced as a series of violent but now the process of force-feeding included punitive elements of restraint assaults resulting in what they described as excruciating pain. Physicians were and even violence inflicted on the detainee. Further, there was no pretense of either present or directly involved in many of the practices. the process began seeking to address the underlying sources of the detainee’s protest, or of ensur- with forcibly removing the detainee from his cell. Medical personnel were often ing the medical independence of physicians or their role as intermediaries. on present at that time. one detainee kept in isolation described how an officer the contrary, the medical staff participated directly in the routine use of the told him that if he would not eat solid food, he would be force-fed in the restraint chair in order to enterally feed the detainee.99 restraint chair. When he declined, he said, guards “picked him up by the throat, Medical staff, by command-level protocol, became engaged in a process of threw him to the floor and strapped him to the restraint chair.”103 directly inflicting torture or cruel, inhuman, or degrading treatment on the medical note signed prior to such a force-feeding stated that a prisoner detainees strapped in the restraint chairs. Physicians who would not participate can expect to spend up to 60–120 minutes restrained.104 the inability to move in forced feeding on ethical grounds were screened out to prevent their deploy- for long periods of time while being force-fed was agonizing for many detainees. ment to guantánamo.100 if there was any doubt that such screening practice was there are also multiple accounts of detainees being left in restraint chairs for the exact opposite of what the declaration of Malta requires, that doubt was hours at a time to urinate and defecate on themselves, despite pleas to use the removed by revisions to the declaration in 2006, soon after the new procedures bathroom.105 were put into place: where “a physician is unable for reasons of conscience to According to captain Edmondson, the procedure required doctors to care- abide by a hunger striker’s refusal of treatment or artificial feeding, the physi- fully and continuously evaluate the rates of gastric feeding and hydration of cian should make this clear at the outset and refer the hunger striker to another detainees, given that each patient will vary in ability to accept differing amounts physician who is willing to abide by the hunger striker’s refusal.”101 of hydration and nutrition.106 detainees, however, made repeated allegations of detainees consistently reported suffering in the new force-feeding process. being given too much dietary supplement, causing them to vomit.107 one Even in the best of circumstances, as where a physician consulting for a detainee describes being forced to consume an entire carton of Ensure, a liquid detainee’s lawyer witnessed the procedure, use of the restraint chair was very dietary supplement, causing him to vomit so violently that he ejected the end of unpleasant. dr. Emily keram, who evaluated detainee Ahmed Zaid slaim the feeding tube that had been in his stomach.108 detainees had no means of Zuhair in April 2009, witnessed a feeding and provides a detailed description of resisting the forced ingestion of excessive amounts of Ensure.109 it is no surprise, the procedure, following the standard protocol: then, that detainees viewed the restraint chair as a deliberate effort to torture them and was characterized by one detainee as the “execution chair.”110 Another Once Mr. Zuhair was in the chair, restraints at the ankles, waist, wrists stated that the restraint chair caused him to feel “like an animal,” not a person; and a shoulder harness were placed by the guards. The restraints are made the restraint chair took away his “honor and dignity.”111 of material similar to an airline seat belt. The feeding tubes used at the other concerns raised in medical declarations relate to the longer-term med- time of the evaluation were 10 French (small bore). The nurse dipped the ical consequences of the force-feeding protocols on detainee health. Abdul tube in olive oil prior to insertion as the lubricant caused Mr. Zuhair rahman shalabi, who had, as of september 2010, been on continuous hunger discomfort ….Tube placement was checked with a stethoscope using air strike for five years, exhibited medical complications that can result from and confirmed with a small water bolus. A bag containing the feeding extended periods of enteral feeding and repeated insertions of a nasogastric solution was attached to the feeding tube. The rate of delivery was tube. his symptoms included serious inflammation of the nasal passage and gas- controlled by a stopcock mechanism. Mr. Zuhair would tell the nurse when trointestinal complications.112 on independent medical evaluation he was also the rate needed to be adjusted for comfort. He would be kept in the found to be suffering from post-traumatic stress disorder and exhibiting signs of restraint chair for 15–30 minutes after the solution was administered to major depression as a result of his treatment.113 Ahmed Zaid salim Zuhair, who facilitate absorption.102 was also on hunger strike for five years, was described in an independent med- As this account shows, some doctors and nurses sought to minimize the dis- ical report by dr. keram as suffering from coccydynia, which is pain in the tail- comfort to detainees from what is inevitably a very uncomfortable procedure. bone, and hemorrhoids, which are exacerbated by use of the restraint chair; she 106 | Ethics AbAndonEd Hunger strikes and force-feeding | 107 also found that his symptoms of anxiety and depression were exacerbated by the detainee operations.123 the instruction justified force-feeding by equating use of the chair.114 the accounts of detainee lawyers also indicate that the hunger strikes with attempted suicides or other efforts at serious self-harm, detainees on hunger strike even for more limited periods of time had clinical and said that treatment may be directed without the consent of the detainee complications connected with force-feeding, mainly relating to pain and when “immediate treatment” is needed to “prevent death or serious harm.” no hoarseness of the throat and in some cases visible swelling of the arms from reference is made to hunger strikes as protests against conditions or circum- attempts to insert an iv.115 stances of confinement. As before, the recommendation was also subject to the government denied the accuracy of these claims,116 but the claims of tor- approval of the “senior officer responsible for detainee operations.”124 this ture by detainees through force-feeding in restraint chairs were never adjudicat- instruction remains in effect today. ed, as a court hearing the case deferred to guantánamo administrators, stating the task Force believes a number of features of the instruction are worthy of that, “resolution of this issue requires the exercise of penal and medical discre- note. First, it ignores clinical information about hunger strikes, including the tion by staff with the appropriate expertise, and is precisely the type of question recognition by medical staff in 2002 that hunger strikers could fast for many that federal courts, lacking that expertise, leave to the discretion of those who weeks without jeopardizing their lives and the record that hunger strikers were do possess such expertise.”117 not suicidal. indeed, the instruction contains no recognition that in most cases no by early 2006, however, after media reports of the use of the restraint chairs clinical harm whatsoever exists during the initial period of a hunger strike. and their impact on detainees, medical organizations began to protest. A letter second, consistent with this omission, it leaves the meaning of “prevent death or from more than 250 prominent physicians appeared in the Lancet, one of the serious harm” undefined, leaving it unclear when force-feeding can be started. premier medical journals in the world, in March.118 the same month the third, despite its apparently medical approach, it affirms that the decision to American Medical Association issued a critical statement119 in which dr. duane force-feed is not a medical one, as the commander of the detention center is M. cady, chair of the association’s board of trustees, quoted from the World assigned the final decision, thus undermining the very claim that the action was Medical Association standards: “…where a prisoner refuses nourishment and is about saving lives.125 Fourth, the instruction contains no reference to any effort to considered by the physician as capable of forming an unimpaired and rational respect detainee autonomy, even where life or health is not under threat, as the judgment concerning the consequences of such a voluntary refusal of nourish- 2003 and 2005 policies did. Fifth, it makes no explicit mention of the use of force ment, he shall not be fed artificially.”120 or the restraint chair, leaving the practice entirely unregulated by civilian leader- later in the year, the islamic Medical Association of north America, asked ship, even though routine use of the restraint chair ignores a provision in the same by the dod for its views, referenced the prohibition against suicide in islam instruction that requires restraints only be used where it is determined that they but called on the United states to follow the World Medical Association and are necessary for the health or safety of the detainee or others.126 the omission is American Medical Association ethics analysis, calling force-feeding a form of important because, when introduced, restraint chairs were used for all enteral inhuman and degrading treatment and the use of restraint chairs a form of feedings unless there was a medical reason for refraining to do so.127 torture.121 the use of restraints also raises the question of whether that prac- officials claimed at the time and have claimed since that the policy was mod- tice was inconsistent with requirements of the Un Principles of Medical elled on the policy of the U.s. bureau of Prisons, which permits involuntary Ethics, which provide that it is a violation of medical ethics to use physical feeding.128 the task Force is of the view that the bureau of Prisons policy is restraints on a prisoner without a determination that it is necessary for the inconsistent with the requirements of the declaration of Malta because of its protection of the physical or mental health of the prisoner or the safety of the endorsement of forced feeding. there are, nevertheless, key differences prisoner or others.122 between the bureau of Prisons approach and that of the dod: At the same time, the dod was in the midst of a high-level policy review of • bureau of Prisons practice assigns control of responses to hunger strikes medical practices affecting detainees. in June 2006, as protests from medical to physicians, based on individual circumstances and good medical groups continued and the revisions to the Malta declaration were under con- practice, whereas at guantánamo it is the commanding officer who has sideration by the World Medical Association, the Assistant secretary of ultimate authority on force-feeding. defense for health Affairs issued a new instruction on medical support for 108 | Ethics AbAndonEd Hunger strikes and force-feeding | 109

• Force-feeding is not initiated by the bureau of Prisons from the inception decision. dod claims that it is “extremely difficult” for clinicians to make such of a hunger strike; in one reported case, it took six weeks before force- an assessment, including whether detainees are under orders from other pris- feeding was considered.129 oners, so eschews them altogether and opts instead for a blanket policy of force- feeding.138 dod also prevents physicians from occupying the role of counselor • bureau of Prisons regulations provide that the use of restraints is to the detainee, as its “counseling” consists only of encouraging the detainee to permitted only in cases of specific behaviors limited to assaults, eat and reciting that force-feeding is a result of orders from above. in his 2005 destruction of property, attempted suicide, injury to oneself, or violence declaration, captain Edmondson stated, “one of my physicians met with the or showing signs of imminent violence.130 detainee patients and explained again why involuntary feeding was being done • bureau of Prisons regulations make no provision for routine or and that the involuntary feeding was authorized through a lawful order of a categorical use of restraints generally or to use of restraint chairs for higher military authority”139—a frank acknowledgement that medical judgment force-feeding.131 According to the U.s. government’s 2005 report on its was superseded by military ones. compliance with the convention Against torture, “the [bureau of in sum, the bureau of Prisons physician continues in his or her role as physi- Prisons’] use of restraint chairs is intended only for short-term use, such cian and healer, whereas the physician engaged in force-feeding at guantánamo as transporting an inmate on or off an airplane.”132 is acting as an agent of the security apparatus. in discussing the 2006 policy, dr. Winkenwerder continued to claim that the • bureau of Prisons regulations state that the use of four-point restraints policy was based on preserving life, even suggesting that the case of hunger (five-point restraints are not contemplated) is only permitted where the strikers at guantánamo was like the then most famous feeding case in the warden determines that “they are the only means available to obtain and United states, the terri schiavo case, where the question was whether to con- maintain control over an inmate” and other conditions are met.133 tinue feeding a comatose woman.140 that case was nothing remotely like force- • bureau of Prisons regulations make no reference to use of force-feeding feeding competent prisoners over their overt objections. the relationship as a form of discipline or control of inmates. between the artificial feeding of terri schiavo and the realities of force-feeding at guantánamo could not have been starker: whereas a claim was being made • safeguards are in place to protect inmates, including policy that: to feed in the name of health, dod practice has been to engage in acts that • requires the warden to notify the sentencing judge of involuntary inflicted pain and punishment on detainees. feeding, with an explanation of the background of and reasons for dod did not want hunger strikers to die, but the task Force concludes that involuntary feeding134 even if its policies were based in part on the preservation of detainees’ lives, they have been severely tainted by the security aim of gaining control over • requires videotaping of force-feeding135 detainees and defeating hunger strikes, the coercion used to achieve it, and the • Provides access to counsel and legal remedies for abuses in the force- undermining of medical care. the role of physician as trusted intermediary and feeding process source of advice was transformed into the role of physician as agent of detention authority, in violation of the duty of beneficence as reflected in professional • requires review by an appropriate court be sought in advance if force- standards and in Un requirements.141 the statement of the islamic Medical feeding through surgery in the abdominal wall—called a Association, which was sympathetic to the view that detainees should not be gastrostomy—is used136 allowed to die, captured how the practice at guantánamo was inconsistent with sound medical practice and ethics. Finally, the bureau of Prisons requires that “treatment is to be given in accor- dance with accepted medical practice.”137 by contrast, dod does not expect Such people [hunger strikers] should be given full access to medical care, physicians to make judgments about detainee capacity, a fundamental duty orig- pastoral care, and mental health services to best address the intentions of inating in respect for the patient as well as the voluntariness of the detainee’s their actions and to counsel them on the grave consequences of suicide in 110 | Ethics AbAndonEd Hunger strikes and force-feeding | 111

Islam. Notwithstanding our support for the view of the cited medical obtain after the 2006 instruction is a declassified 2008 medical care standard bodies, we would consider life supporting measures in such very limited operating procedure for the bagram military facility in Afghanistan,146 which and extreme circumstances only after a thorough medical and mental can be read along with a court declaration filed in 2008 by the Joint Medical health evaluation with independent supervision and observation, which to group commander and the Joint task Force surgeon at guantánamo.147 it rec- our knowledge do not currently exist in Guantánamo.142 ognizes, consistent with knowledge in the field but contrary to assertions by dod leadership, that hunger strikes are initiated “as a form of protest or to As noted above, revelations about U.s. practices, together with concerns demand attention,”148 rather than as suicidal behavior or self-injurious behav- raised in response to hunger strikes in turkey, led the World Medical ior.149 Except in the context of a mental health evaluation, however, the operat- Association in the fall of 2006 to adopt even more explicit standards against ing procedure does not call for any effort to understand, much less address, the force-feeding, accompanied by a detailed background paper.143 though the asso- reasons for the protest, and eschews any attempt by either command or the pri- ciation took a firm position against force-feeding, and specifically condemned mary health care provider to resolve the detainee’s concerns. rather, the entire the use of restraints in force-feeding as inhuman and degrading treatment, the policy is designed to end the hunger strike either by convincing the detainee to dod did not further review its policy, and does not follow the Malta standards. abandon the hunger strike or, if that fails, by force. doctors and nurses play a As a result, the dod requires military physicians to violate internationally part in carrying out this policy. accepted medical ethics standards. the task Force notes that the protocol reflects tension between appropriate After many procedural delays, in 2009 a federal court considered the claims medical management and subordination of medical considerations to security of detainees dating to 2005 and 2006 that force-feeding and the use of the functions. While there are expressions of alleged concern for the “health and restraint chair violated their rights under the U.s. constitution. it found that welfare of hunger striking detainees,”150 the primary objective is to convince or the use of the restraint chair was “standard policy,”144 but as noted above coerce the detainee to end his protest by eating. As in past policies, non-medical declined to adjudicate the claims of the detainees, as it believed intervening military authorities make decisions to initiate or end force-feeding, thus con- court decisions prevented it from addressing claims by detainees at straining the roles of physicians and nurses. Further, according to the proce- guantánamo about their conditions of confinement. it held no evidentiary dures, a hunger striker is immediately put in administrative segregation, a puni- hearing. At the same time, it accepted at face value the claim by the dod that tive response. if the detainee refuses to undergo an examination, he may be commanders were acting to preserve the life of detainees and that they had forced to do so by order of the head of all detention and operations, the guardian determined that the use of the restraint chair was necessary to achieve that end commander. Medical personnel participate in the effort to break the strike. the and that no less restrictive means were available.145 mental health staff is also assigned the duty to conduct “behavioral interven- As the preceding discussion shows, however, the court was mistaken in tions to persuade the detainee to resume eating.”151 these interventions include accepting those representations, not only because they were not subject to a offering the detainee “tempting food,” and situating him with small groups “to hearing and cross-examination, but because there is nothing in the existing create peer pressure to eat.”152 the medical staff is assigned the task of notifying record about dod policy and practices regarding hunger strikes to support the detainee of risks of not eating and trying to dissuade the detainee from con- them. the court also noted in passing that the dod had vetted the use of tinuing the fast. At no point are the health professionals advised to use inde- restraint chairs with the bureau of Prisons, but here, too, the court’s jurisdic- pendent medical judgment to ascertain the detainee’s wishes and plans, nor to tional decision led it not to explore the comparison between policies and prac- counsel the detainee about his course of action. tices of the dod and the bureau of Prisons. nor did it address the requirements if efforts to convince the detainee to eat are not successful, the medical offi- of the declaration of Malta regarding the role of physicians in force-feeding. cer may recommend involuntary treatment and feeding.153 According to the procedures, force-feeding should be considered if any of the following clinical hUngEr strikE PolicY 2007–PrEsEnt criteria are met: evidence of deleterious health effects reflecting end organ hunger strikes, force-feeding, and the use of restraint chairs have continued damage; pre-existing condition that could lead to end organ damage; the since they were adopted in 2006. the first protocol the task Force was able to hunger strike has been ongoing for 21 days; the detainee weighs less than 85 112 | Ethics AbAndonEd Hunger strikes and force-feeding | 113 percent of ideal body weight; the detainee has experienced 15 percent weight cate what the typical time is.158 the report states that many of the chairs were loss. on the other hand, it permits force-feeding through many methods, outfitted with pillows and padding for comfort. it also says that restraint chairs including forced enteral feeding through nasogastric tubes, intravenous admin- were used when deemed necessary by medical personnel.159 istration of high-nutrition solutions, and the use of feeding through surgically Admiral Walsh declared that force-feeding policy and practice was humane, established access into the stomach through the abdominal wall. accepting the position articulated by the dod that it was “conducted solely as a Although the protocol is not clearly written, it appears that force-feeding medical procedure to sustain the life of and health of hunger strikers.”160 was initiated in the hospital. According to the protocol, after six or more days According to his report, if the detainee chose not to eat, the physician was of hospital feeding, the detainee can be moved to the cell block at the discre- instructed to continue evaluations until there was a “significant threat to life or tion of the medical officer for either voluntary eating or intermittent enteral health if the fasting were to continue.”161 the report did not consider the signif- feedings two to three times a day. if the hunger striker continues to refuse to icance of the routine use of force-feeding and the restraint chair for months at eat, the protocol authorizes and recommends the use of restraints: “Medical a time. Although it cited nongovernmental organization demands that World restraints (e.g., chair restraint system) should be used for the safety of the Medical Association policy be followed, it did not address that concern, nor the detainee, medical staff, and guard force.”154 the medical provider has the ethical implications for physicians and nurses in implementing dod policies. authority to order the use of restraints. in that case, the guards offer the the task Force is troubled by Admiral Walsh’s lack of in-depth review of detainee restroom privileges and then shackles are placed on him and a mask force-feeding policies and practices, 162 by the sunny picture he presents of the is placed over his mouth to prevent spitting and biting. he is weighed and then use of restraint chairs and forced cell extraction, and by his lack of attention to “escorted to the chair restraint system and is appropriately restrained by the medical ethics. Far from being humane, the use of force-feeding over the past guard force.” When the guards advise that it is safe, medical personnel initiate decade violates the human rights of detainees and has led physicians and nurses medical restraint monitoring, recording his condition every 15 minutes. A to commit serious breaches of their professional standards. Moreover, detainees feeding tube is placed in the detainee through the nose using viscous lidocaine. have been force-fed for weeks and months at a time. the task Force is not aware if there is sufficient staff available, the detainee is removed from restraints of any precedent for “managing” hunger strikes for such a long period, lasting after feeding is completed, usually after 20–30 minutes, and placed in a “dry over months, and in some cases years.163 neither the World Medical Association cell,” where no water is available, for observation on whether he is vomiting or nor any standard-setting authority ever contemplated multiple force-feedings in is trying to induce vomiting. if sufficient staff is not available, the detainee will a restraint chair over the course of weeks, much less months and years, as has be kept in the restraint chair for up to two hours. been the practice at guantánamo. the task Force joins others in concluding Although the protocol is not entirely clear, it appears to call for the routine that the practice of force-feeding in restraint chairs over the course of months, use of the restraint chair in every case of enteral feeding. captain bruce depending on the exact circumstances, amounts to torture or inhuman and Meneley’s 2008 declaration suggests that this was the practice in guantánamo degrading treatment. at the time, as he notes that the detainees were fed in restraint chairs in a com- in April 2011 there was a report of another coordinated hunger strike in mon area in front of their cells.155 the 2009 court decision also referred to the progress.164 Additional hunger strikes were reported in 2012.165 in March 2013, use of restraint chairs as standard policy.156 in early 2009, a news report stated the Joint Medical group at guantánamo adopted a new standard operating pro- that 10 percent of detainees at guantánamo were being force-fed.157 cedure (soP) on medical management of hunger strikes166 that follows the con- Admiral Walsh’s 2009 review of practices at guantánamo makes clear that tours of the 2008 bagram policy and also makes certain key changes to it. three years after the introduction of the restraint chairs, and use of “forced cell • the soP explicitly views hunger strikes as a security issue, analogizing extraction” to move detainees who would not cooperate in force-feeding, these adjustments to responses to hunger strikes to needed changes in procedures remained in place. his report says that these individuals were fed on battlefield tactics. it notes, too, that because some detainees have been on gurneys or in restraint chairs without head restraints (which would make the hunger strikes since 2005 and are chronically malnourished, a new chairs five- rather than six-point restraints), which it claimed were used for the operating procedure is needed “to reflect current tactics and practice.” minimum time necessary to protect staff and detainees—but it does not indi- 114 | Ethics AbAndonEd Hunger strikes and force-feeding | 115

• the soP makes clear that while the articulated policy is to “protect, • in a major policy change from the past that adds to the coerciveness of preserve and promote life,” the role of medical personnel is to serve the force-feeding, the detainee is no longer permitted to control drip rates interests of command. doctors and nurses do not act with medical or order of ingredients during enteral feeding. in 2005, captain independence. rather, the soP states that effective management of Edmondson had stated that “detainees retain a large measure of control hunger strikes “requires a partnership between the [Joint Medical group] over the administration of nutrition” and that the detainee subject to medical staff and the Joint detention group (Jdg) security force.” As in enteral feeding “controls the flow of nutrition so that discomfort is the past, the final decision whether to force-feed a detainee is made by minimized.”167 the new soP states that such control “has had the effect the Joint task Force commander, not a physician, and must be in writing. of prolonging the total time spent in the feeding chair and has given the the command also determines places and times of feeding. detainee a measure of control over an involuntary process.” All elements of detainee control over flow rate, content of feeding, or location of • consistent with this approach, after a hunger strike has begun (defined as feeding is now prohibited. communicating an intent to be on a hunger strike, missing nine consecutive meals, or weight loss to a level lower than 85 percent of ideal • Feeding solutions are ordered by a physician and enteral feeding is body weight), the initial role of medical personnel is limited to a medical administered by a nurse. in light of the rules depriving detainees of any evaluation, explaining the medical consequences of a hunger strike to the control of feeding, the nurses’ judgment and independence is severely detainee, and making recommendations to command on force-feeding constrained. the soP provides stock responses nurses should make to and the need for hospitalization. the soP makes no provision either for detainee questions and complaints that deny them the ability to make an evaluation of the detainee’s competence or capacity, or for the affirmative responses to requests. For example, if the detainee asks to physician to counsel the detainee on options. see a doctor, the nurse is to respond, “i will write a note in your chart for the doctor.” • the soP calls for the behavioral health service to perform an assessment of the mental and psychological status of the detainee, but says nothing Around the time the new policy was issued, a mass hunger strike began. about how this information is used to make decisions about addressing Although the origins of the mass hunger strike are disputed, it appears to have the hunger strike. ongoing medical evaluation, which is required, does initially been a result of detainees’ despair over lack of prospect of transfer even not provide for review of capacity or mental state. if they had been cleared to go to another country. by March 15, the official • the soP reiterates, in slightly different form, the five grounds for permitting count of hunger strikers was 14. it rose to 21 by March 18 and reached 25 by forced enteral feeding contained in the bagram soP. to recommend force- March 20. Eight of the 25 were force-fed.168 A week later, there were a total of feeding, the medical officer must also state that involuntary feeding is 33 hunger strikers, representing 19 percent of the detainees; 11 were being necessary to prevent risk of death or “serious harm to health.” force-fed and three were hospitalized.169 by April 11, the number reached 43, and the president of the icrc publicly urged President obama to resolve what • the soP states that chair restraints should be used for enteral feeding he called the “untenable” legal situation of detainees held in indefinite deten- “for the safety of the detainee, the medical staff, and the guard force.” tion.170 two days later, the situation turned violent, as guards forcibly emptied the restraint chair may be used twice a day for up to two hours each time, communal cellblocks, fired non-lethal shots at detainees, and detainees resisted including post-feeding observation. Placement in the restraint chair is with improvised weapons.171 done by the guard force. Medical personnel monitor the individual’s Meanwhile, a detainee’s experience of force-feeding under the new policy condition every 15 minutes. was expressed in an op-ed in the New York Times: • detainees who are “chronic enteral feeders” and who agree to be fed that Last month, on March 15, I was sick in the prison hospital and refused to way may receive enteral feedings in medical clinics or media rooms in be fed. A team from the E.R.F. (Extreme Reaction Force), a squad of eight communal settings with a single restraint. military police officers in riot gear, burst in. They tied my hands and feet to 116 | Ethics AbAndonEd Hunger strikes and force-feeding | 117

the bed. They forcibly inserted an IV into my hand. I spent 26 hours in this that, depending on the exact circumstances in each case, current force-feeding state, tied to the bed. During this time I was not permitted to go to the practices amount to either torture or inhuman and degrading treatment. toilet. They inserted a catheter, which was painful, degrading and unnecessary. I was not even permitted to pray. Needed reforms I will never forget the first time they passed the feeding tube up my nose. I can’t describe how painful it is to be force-fed this way. As it was thrust the dod should prohibit the use of force-feeding, forced cell extraction, and in, it made me feel like throwing up. I wanted to vomit, but I couldn’t. restraint chairs, and restore physicians to the proper role of having a true doc- There was agony in my chest, throat and stomach. I had never experienced tor-patient relationship with detainees engaged in hunger strikes. taking that such pain before. I would not wish this cruel punishment upon anyone. course not only is consistent with medical ethics and human rights but can pre- vent the confrontations that have characterized hunger strikes at guantánamo. I am still being force-fed. Two times a day they tie me to a chair in my the dod should agree to abide by the declaration of Malta and issue guid- cell. My arms, legs and head are strapped down. I never know when they ance and training consistent with it. Protocols that require the physician’s coun- will come. Sometimes they come during the night, as late as 11 p.m., when selling of detainees to consist of little more than notifying him of the medical I’m sleeping. and security consequences of fasting should be replaced by rules that foster and provide support for an ethics-based physician-patient relationship.176 the proto- When they come to force me into the chair, if I refuse to be tied up, they call cols should enable the physician to act with professional independence and the E.R.F. team. So I have a choice. Either I can exercise my right to protest autonomy so as to make medical decisions on an individualized basis without 172 my detention, and be beaten up, or I can submit to painful force-feeding. control or required approval by security or base officials, including when to feed 177 in late April, the American Medical Association wrote to the secretary of via a nasogastric tube. confidentiality of communications must be guaran- defense, reiterating its view that “the forced feeding of detainees violates core teed. it is essential that the physicians be trained and instructed to convey from ethical values of the medical profession.”173 by the end of April, more than 100 the start that they are not there as prison officials to try to convince the detainee of the 166 detainees at guantánamo were on a hunger strike, and 21 of them to stop his protest but rather as providers who put the patient’s interests first. were being force-fed.174 the protocols should reinforce the duty to convey to detainees that the doctor in the task Force’s view, the new policy is even more punitive than those is present as their physician, to see to their health, to answer any questions they employed in the past and exacerbates the features of U.s. hunger strike policy may have, to explain how fasting and metabolism work, but above all to listen at guantánamo that already violate international standards. the task Force fur- and maintain a line of communication with them, and to act out of a genuine ther concludes that by entangling physicians and nurses in a punitive approach concern for their health and well-being. to hunger strikes and requiring them to depart from duties of respect for patient rules governing prison operations should change to facilitate the appropri- autonomy and exercise of independent professional judgment, the dod assigns ate role of the physician. the physician must be able to meet in private with the 178 a role to physicians and nurses that is unethical. the task Force’s conclusion is hunger striker. Provision should be made for advance directives in the event 179 consistent with decisions of courts reviewing similar practices. the European the detainee loses the capacity to make medical and life decisions. no court of human rights, while stating that force-feeding to save a life may not detainee should be punished or be subject to less advantageous conditions of amount to a violation of laws against torture and cruel, inhuman, or degrading confinement on account of participating in a hunger strike; if he needs to be treatment, held that “repeated force-feeding, not prompted by valid medical separated from others involved, he should be housed in equivalent conditions, reasons but rather with the aim of forcing the applicant to stop his protest, and not placed in isolation. As trust is essential to appropriate medical care for performed in a manner which unnecessarily exposed him to great physical pain hunger strikers, other policies that undermine trust, such as sharing medical and humiliation, can only be considered as torture.”175 the task Force agrees information with interrogators or participation in interrogation by health pro- fessionals (including non-clinicians), should be eliminated. 118 | Ethics AbAndonEd Hunger strikes and force-feeding | 119

Procedures and accountability for health professional reporting of abuse course of action and future wishes in the event of loss of capacity. Ethics com- must be strengthened. Alternative paths for resolving detainee grievances mittees help the physicians address questions that arise during the course of the should be available. compliance with international norms for prisoner treat- hunger strike. taking this approach is considered consistent with israeli legal ment and access to counsel need to be followed.180 consistent with the requirements for respecting the sanctity of life. While critics cite other ethical declaration of Malta, outside medical consultants should be allowed at the and human rights violations in authorities’ responses to hunger strikers, criti- request of the detainee or his family. cisms the task Force has not assessed, force-feeding is prohibited and no pris- Prolonged social isolation, often leading to the kind of desperation that pro- oners have died. duces hunger strikes, should be ended, and indefinite detention, which has been a major driver of hunger strikes,181 should be addressed. the instructions and protocols establishing physician autonomy should be accompanied by training to help physicians carry out their duties. For example, the physician should be taught to determine whether the hunger striker is alone in his decision, whether he is under pressure, and whether the hunger striker is prepared to accept a fall-back position, accepting much less than initially demanded. the physician should also be trained not simply to counsel the detainee about the medical consequences of a prolonged fast, but in finding a solution, perhaps by lowering the bar of contention or discussing options such as taking vitamins and perhaps other nutrients so as to allow plenty of time for negotiations. if the detainee admits he does not want to continue the hunger strike, he can be counselled about potential options. if approached in this constructive way, aiming to establish a positive rapport and (hopefully) trust between the physician and the hunger striker, the protes- tor may agree to receive artificial feeding, thus allowing him not to lose face (by quitting the hunger strike), yet freeing him from danger while a solution is sought. For collective hunger strikes, physicians should be trained in how to speak with each hunger striker individually, and how to ensure development of trust, privacy, lack of punishment or coercion, and confidentiality. such practices can also serve to avoid clashes between physicians and author- ities or put physicians in situations where they either have to refuse to obey com- mand or abandon ethical practice. it is likely that in the vast majority of cases, these steps will provide a route to addressing the concerns and health needs of hunger strikers. in all circumstances, this course will ensure that the independ- ence of the medical chain of command will be affirmed and reinforced. other countries, such as the United kingdom and israel, successfully follow this approach. in israel, the task Force has been informed by israeli Medical Association members who are treating hunger strikers that in the last decade thousands of Palestinian prisoners have engaged in hunger strikes. the empha- sis in the medical response to hunger strikes is to ensure a doctor–patient rela- tionship based on trust and to help the detainee make decisions about his chAPtEr 4

Education and training of military physicians on treatment of prisoners

MilitArY PhYsiciAns ArE conFrontEd with unique ethical conflicts that pit the primacy of the physician-patient or physician-prisoner relationship against military priorities. the most significant of these is dual loyalty—con- flicting obligations to patients and a third party. When the third party is the state, patients’ human rights are often at risk.1 Although issues of dual loyalty implicate human rights in certain institutions because of of liberty and use of coercion (prisons, mental hospitals), they are especially intense in mili- tary settings where the interests of prisoners can be undermined by claims of national security. Formal instruction of physicians, however, may enable them to better distinguish what they owe prisoners as medical professionals from what they owe the military as officers. this chapter opens with a description of medical school education, both civilian and military, focusing on the content of ethics curricula in each. it then discusses how physicians receive training in medical ethics during residency training (which is known as graduate medical education), basic officer training, and pre-deployment training. it also analyzes teaching and reference materials, including field manuals. the chapter closes with a set of recommendations about educational content and teaching methods that aim to prevent the abuses that occurred at Abu ghraib, guantánamo, and elsewhere. it does not cover education of other health professionals, including psychologists, though the rec- ommendations for pre-deployment training apply to all health professionals.

Ethics education in civilian medical schools the education of a physician takes place over a far longer period of time than the education of other professionals. Medical schools in the United states 122 | Ethics AbAndonEd Education and training of military physicians | 123 require four years of attendance. residency requires an additional three to five Medical ethics education in the military years, depending on whether one wants to be an internist or pediatrician (three years) or a surgeon (five years). sub-specialty fellowship training of an addition- there are two parallel systems of undergraduate military medical education. al two to four years has now become commonplace. this means that many the vast majority of military physicians on active duty are graduates of civilian physicians trained in the United states spend 10 years after completing college medical schools. Many of these physicians are in the military as part of the learning to become a doctor. health Professions scholarship Program, a loan repayment plan in which one of these 10 years of training allow opportunities for learning about ethical the branches of the military (U.s. Army, navy, Air Force) pays the student’s issues, such as end-of-life decision-making and informed consent for human medical school tuition, and a small stipend, in return for four years of service experimentation. Ethics education is relatively new to medical school curricu- after residency training (and fellowship training if so desired). the average la. three decades ago, few U.s. medical schools offered courses in medical physician remains on active duty for an additional 4.6 years after completion of ethics. the patients’ rights movement of the 1970s and the scandals in human mandatory service. experimentation, including decades-long experiments in which African Parallel to this military-funded civilian medical school education, the U.s. American men were denied effective treatment for syphilis, among other social military operates one medical school, the Uniformed services University of the and political events, fomented the change. Fallout from the 1976 case of karen health sciences (UsUhs). Established by congress in 1972, UsUhs is under Ann Quinlan, a young woman hospitalized in a persistent vegetative state, the supervision of the department of defense (dod) and mandated to graduate stimulated the inclusion of end-of-life decision-making as part of medical no fewer than 100 medical students annually.4 the school educates physicians school ethics courses. dedicated to career service in the dod and the U.s. Public health service, with Progress in establishing such courses has been uneven. While the over- the formal objective of creating military physicians. tuition at UsUhs is free, whelming majority of medical school deans (94 percent) believe ethics courses and students are paid a stipend and base pay while in school, averaging around should be mandatory, individual schools’ commitment to ethics education $52,000 per year.5 over the last decade, UsUhs has graduated an average of varies widely. twenty percent of schools provide no funding for ethics educa- 167 students per year. by 2010, 3,912 physicians had graduated from UsUhs tion, and only 55 percent require an introductory ethics course for all students.2 and 75 percent of them remain on active duty.6 Eighty percent of UsUhs grad- Even when ethics courses are academically rigorous and provide excellent con- uates are satisfied with their medical education, compared with a third of those tent, the material is easily forgotten when physicians enter practice. because who received their medical education in civilian medical schools under the ethics does not constitute a subject on any board examination, there are no health Professions scholarship Program.7 sanctions for ignorance. the military medical system is geared to train physicians to provide medical Even more important, formal coursework on issues of human rights and the care to men and women in the military, their families, and their dependents. problems of dual loyalty for physicians—whether working in the military, cor- deployment to a combat zone comprises a small fraction of any military physi- rections, mental health, or corporations— are only now beginning to attract cian’s career. Medical care on U.s. territories is provided in more than 20 mili- attention in ethics education. in the wake of allegations of physician participa- tary medical centers, the largest of which are in Washington, dc, and san tion in torture at Abu ghraib, a survey conducted in 2007 asked deans of U.s. Antonio, texas. Military medicine is distinct from the veterans Affairs system. medical schools about barriers to implementing ethics courses that included the medical education of a military physician is divided into four years of international human rights and the role of physicians in armed combat. less undergraduate medical school and three to six years of post-graduate education than one-third of the medical schools offered teaching on health and human (residency training with or without sub-specialty training). Pre-deployment rights. of those that did, less than one-half offered courses for credit. the vast training lasts three to six weeks before military physicians ship off with their majority of medical school deans (88 percent) said that there was no time in the units to combat zones. curriculum for this material, although 80 percent acknowledged that there was the curriculum at UsUhs is 700 hours longer than the curriculum at other student interest, and virtually all administrators (98 percent) believed that U.s. medical schools. the extra hours cover epidemiology, tropical diseases, health and human rights was an appropriate subject for medical students.3 leadership, field exercises, and other requirements that are especially relevant 124 | Ethics AbAndonEd Education and training of military physicians | 125 to UsUhs’s unique objective of preparing graduates for a lifelong career in mil- This session addresses ethical dilemmas in military medicine. New itary medical service. so too, emphasis is placed on teamwork, particularly questions have emerged since 9/11. For example, what is permissible cooperation with nurses, ancillary staff, and medics. in addition, UsUhs med- during interrogations of suspected terrorists? What are military ical students must learn administrative subjects generally not taught in civilian physicians’ moral obligations when they learn of or suspect severe harm or schools, such as how medical care is organized and delivered in the civilian sec- pain or even death? tor as well as in combat situations. the course’s required reading, reviewed by the task Force, contained seven works. the task Force does not find the reading representative of the field. of Human rights in the USUHS curriculum greater importance, the works are skewed toward instructing students in achieving military objectives or what is referred to as “balance” in situations where students should be instructed in the binding commitments the United At UsUhs, second-year medical students are required to take an ethics course. states has made under geneva conventions and human rights treaties regard- the syllabus presents eight Prioritized learning objectives: ing the treatment of prisoners and civilians.8 one reading asserts that “war fun- 1. to consider whether military physicians during combat should attempt damentally transforms the major principles and central issues that engage to save their own soldiers’ lives by giving less than optimal treatment to bioethics” and that the “interests of the state and political community may out- captured enemy soldiers to elicit information from them. weigh consideration of patients’ welfare.”9 these statements conflict with accepted approaches to military medical ethics that recognize the primacy of 2. to consider the extent of military physicians’ obligations to enemy human rights.10 soldiers. the course’s recommended readings consist of 64 works with wide range, 3. to consider military physicians’ potential moral conflicts when providing some of which take a more traditional view of the primacy of the patient-physi- care to civilian patients in occupied territory in part for political gain. cian relationship, making it clear that a physician as a professional owes pri- mary loyalty to the patient or prisoner. however, it is unclear how much atten- 4. to consider military physicians’ duty when servicepersons/patients give tion students give to these recommended materials. Additionally, some of the them confidential information. materials contain dod guidance on medical care for detainees, such as psycho- 5. to consider military physicians’ duty to warn servicepersons/patients logical assessments for interrogation, that the task Force criticizes elsewhere in who come to them for treatment that they will report information these this report. servicepersons disclose prior to servicepersons disclosing it. in the UsUhs ethics course, lectures on the seven required readings are followed by small discussion sections. Facilitators present case studies to their 6. to consider military physicians’ duty when they treat soldiers during sections and the students are asked questions about how they would respond combat who want to return to combat or to be relieved from duty. to a specific situation. of 12 cases, some are hypothetical and some are based 7. to consider ethical dilemmas which can arise in mass casualty on actual events. All the cases are sophisticated. they address dual loyalties, situations when injured persons include one’s own troops, enemy conflict of interest, and human rights in ways civilian medical school soldiers, and civilians. bioethics courses do not. the facilitator’s guidelines instruct section leaders to raise specific questions. 8. to consider the extent of military physicians’ ethical obligations to servicepersons and other beneficiaries of military medical care cAsE 1 during peace. An Al Qaeda leader is being questioned by US interrogators. He has been there is no learning objective that directly refers to the role of military physi- shot in the groin and is in pain. You are asked to be present as the cians in interrogation or in detention centers. however, the syllabus declares: painkillers are used ‘selectively’ until he agrees to cooperate more fully. 126 | Ethics AbAndonEd Education and training of military physicians | 127

(See recommended reading #22 [an article from , July What do you do? 2003: “A Lone Woman Testifies to Iraq’s Order of Terror”].) the facilitator’s guidelines characterize this case as one that involves “mili- tary physicians being asked to treat enemy soldiers less than optimally for the What should you do? purpose of saving their own soldiers’ lives.” the students are asked to consider section leaders are to tell students that information gained using this the following: is there a difference between asking the physician to inflict pain method might lead to the capture of Al Qaeda leaders, and the students are then (administering the succinyl choline) and asking the physician to do something asked whether this would “warrant” the participation of military physicians in which does not inflict pain, but which is neither medically necessary nor ther- this practice. the facilitator is instructed to explain that “the traditional value apeutic (administering “truth serum”)? has been that physicians should not [use pain killers selectively] whether in the in a third hypothetical case, the physician is asked to withhold pain medicine military or not.” from an with a shoulder wound until he answers questions. Although the facilitators are not asked to discuss the violation of the in this hypothetical the physician is not being asked to participate in the actual hippocratic oath, they are told to raise questions about when “doing harm” is interrogation, so withholding the medication is characterized as an “act of omis- justifiable. students are to be asked to consider how certain they should be that sion.” however, the instructor’s guide never discusses the role of a physician as a terrorist has such information and whether this information is relevant to the facilitator of interrogations. case. students are further to be asked whether they believe physicians should case 5 concerns the case of captain howard levy, an army doctor at Fort participate in interrogations at all, and if so, within which limits. if the students Jackson, south carolina, who refused an order to train the green berets argue that physicians should never participate in interrogation, the facilitator is (U.s. Army special Forces) to train medics on certain medical conditions on instructed to raise questions concerning the obligation of physicians to act as the grounds that they would exploit medical practices to commit war crimes whistleblowers for interrogations in which they suspect or believe acts of tor- in vietnam. levy argued that the order was illegal on the grounds that it was ture have occurred. in violation of medical ethics. the facilitator’s guidelines for the levy case begins by clarifying the stakes: “the students, at a minimum, should be cAsE 2 aware that if they use their medical skills in part for a political purpose, A captured enemy soldier is brought to you by members of your own troops whether this is justifiable or not, ethically, they are exploiting these patients’ who are specialists in interrogation. They tell you that this man knows vulnerability (due to illness) and, to some extent using these patients as vital information which could prevent an entire unit’s being destroyed. means to others’ ends (as opposed to treating these patients as ends to them- ‘It is absolutely necessary that he give this information.’ The interrogators selves).” the discussion then moves into an analysis in which it is pointed want you to give this soldier succinylcholine to transiently paralyze his out that gaining patients’ favor is an “indirect” byproduct of providing med- respiratory muscles so that he will remain alert but unable to breathe to ical care and is thus not exploitation of an “inherently coercive situation,” as induce him to talk. (Note that the effect is similar to the sense of drowning was the case two of providing care on the condition that the patient give spe- by suffocation induced by the use of wet towels used in the interrogation of cific information. captured Al Qaeda leaders. … there is no suggestion that this moral relativism might be questioned by the students. the facilitators are encouraged to ask those students who consider any What do you do? degree of exploitation to be morally reprehensible, whether they think that physicians in private practice exploit patients’ illness to earn a salary. Assume you refuse. You are asked instead to give him intravenous sodium it is unclear from the syllabus and facilitator’s guidelines how much time is amytal (truth serum) to attempt to get him to talk by ‘losing his inhibitions.’ spent on each case or how the cases are discussed—how much provocative and The drug will not cause pain, but will produce an effect similar to the stimulating debate occurs, how different one section leader is from another, and moderate intoxication which occurs after one takes several drinks. what, if anything, is done to encourage minority views. 128 | Ethics AbAndonEd Education and training of military physicians | 129

Residency training/graduate torate oversees the army’s medical education programs, both undergraduate and medical education graduate (gME), including all physicians from the health Professions scholarship Program, as well as those from UsUhs.12 An army physician who All graduates of UsUhs enter residency training within the military medical cen- deploys immediately after residency earns “points,” which enhance his or her ter system and graduates of civilian medical schools may also do so. residency in chances of securing a limited slot in a fellowship or sub-specialty program. a military medical center offers the potential for professional mentorship and con- Physicians earn more points if they are deployed to a combat zone as opposed to nections for fellowships and/or jobs post-residency that will count towards the a natural disaster zone. As a result, the physician who receives a competitive civilian graduate’s mandatory four years of service. because the main objective of training slot may not be the most qualified in terms of merit, that is, excellence the military medical system is to care for military personnel and their dependents, during residency judged by superiors while training and high board scores. An residency slots can be found in many areas including obstetrics and gynecology, army physician may also deploy before completing residency training as a gener- pediatrics, psychiatry, primary care, surgery, and Er/trauma. there are 10 major al medical officer. thus, a physician who has completed only medical school and military medical centers, which have some or all of these programs. the two an internship, and therefore has the least amount of clinical experience and judg- largest are the national naval Medical center in Washington, dc, and the san ment, could well end up in combat.13 despite repeated requests in writing, the Antonio Military Medical center (U.s. Army and Air Force).11 task Force has not had the opportunity to obtain any information on how fre- the majority of military physicians on active duty receive their education at quently these least well-prepared medical professionals are sent into combat, or civilian medical schools, so they never participate in the UsUhs ethics course whether they receive enhanced or extended pre-deployment training. described above. Physicians in residency training programs receive ethics teach- ing only when exposed to ethical issues within the context of patient care— when patients refuse medical treatment or require determination of mental Basic officer training capacity to make decisions, or when family members disagree about end-of-life care. residency programs may also offer ethics teaching during weekly grand All military physicians must undergo basic officer training. Physicians attend this rounds, with guest speakers, but the overwhelming majority of grand rounds course either during residency or upon completion of medical training prior to speakers address scientific medical or surgical developments rather than ethical assignment to the medical center where they have “matched.” Each military issues in medicine. it is unlikely that physicians committed to military service medical center is required to regularly supply physicians in given specialties for through the health Professions scholarship Program will have heard any lec- deployment to combat areas, with specialty and destination dictated by military tures during their residency training that address human rights issues in general need. All military medical centers are part of a planned rotation for supplying or the problem of dual loyalties encountered in the military. physicians to combat areas. the rotation order is unknown to medical personnel Each military service has its own rules and requirements for graduate med- at these centers in order to prevent physicians from gaming the system and ical education with little coordination among them. the U.s. navy, for example, requesting assignment to a particular center which recently deployed.14 requires 40–50 percent of its physicians to deploy as a general medical officer Physicians receive the basic officer training course before commencing work in before performing residency training, immediately following internship. Most the military medical center, but some physicians may be deployed immediately of these physicians are employed on ships, whether sent to disaster zones thereafter if their center is next in the rotation or if there is demand for a certain (earthquakes, floods) or to serve as the shipboard physician. once they have specialty such as general surgeons or emergency physicians. completed a year of service, they may then continue with residency training. the basic officer training course provides orientation to the Army Medical the navy has contracts with civilian hospitals, and approximately 40 percent of department and includes non-medical subjects. Physicians enrolled in the its physicians do civilian residencies. course purchase a copy of The Army Officer’s Guide, a 450-page publication cov- the U.s. Army, on the other hand, permits its physicians to complete residen- ering the history of the U.s. Army and its officers, their mission in and out of cy training regardless of whether they are graduates of UsUhs or of the health combat, leadership development, and role-modeling. All officers, physicians scholarship loan repayment program. A centralized medical education direc- included, are taught the major sources of military criminal law and some con- 130 | Ethics AbAndonEd Education and training of military physicians | 131 tent of the Uniform code of Military Justice and the Manual for courts-Martial. torture, corporal punishment, mutilation and medical or scientific the content available for the task Force’s review pertains to criminal behavior experiments…but also to any other measures of brutality whether applied against the U.s. Army and/or civilian personnel and property, not abuses of by civilian or military agents.20 enemy captives. however, officers are required to learn the 1949 geneva officers are instructed on professionalism under the heading “Foundations convention on the wounded and sick, with specific attention to Field Manual of the Profession – values and Ethics of decision Making.” the manual on lead- 27–10, the law of land Warfare. ership focuses on combat stress and leadership training, and covers “the warrior Army Field Manual 27–10, originally issued in 1956 and revised many times ethic,” character development, and leadership competence, using such exhorta- since, is a 180-page document that reviews the purpose of the laws of war and 12 tory language as: treaties signed by the United states, including the four 1949 geneva conventions regarding the treatment of prisoners of war and the protection of civilians. the Doing the right thing is good. Doing the right thing for the right reason field manual contains a definition of a prisoner of war and what rights must be and with the right goal is better. People of character must possess the respected that is taken directly from Article 4 of the 1949 third geneva desire to act ethically in all situations. One of the Army leader’s primary convention.15 the manual quotes Article 17 of the third convention as well: responsibilities is to maintain an ethical climate that supports the development of such character. When an organization’s ethical climate No physical or mental torture, nor any other form of coercion, may be nurtures ethical behavior, people will, over time, think, feel and act inflicted on prisoners of war to secure from them information of any kind ethically. They will internalize the aspects of sound character.21 whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind.16 Other DoD courses and the materials also explain that those captured who are not considered pris- pre-deployment guidance oners of war are “protected persons,” as stipulated by the Fourth geneva convention. this includes “all persons who have engaged in hostile or belliger- According to the survey conducted by the surgeon general, through early 2005 ent conduct but who are not entitled to treatment as prisoners of war.”17 the more than 90 percent of medical personnel (which included physicians, other U.s. Army field manual also quotes directly from the Fourth geneva health professionals, and enlisted personnel) in military detention facilities in convention, which relates to the protection of civilians.18 if for security reasons, iraq and Afghanistan and at guantánamo had received no formal or pre-deploy- such protected persons are deemed a threat, they may be interned, but all such ment training in the generation, storage and collection, and disposition of decisions about internment must adhere to the convention, follow regular for- detainee medical records.22 similarly, very few medical personnel in Afghanistan mal procedures, provide legal counsel of the defendant’s choice, and follow a and iraq, and only half of medical personnel sent to guantánamo, received either timely appeals process schedule. these protected persons are entitled to med- formal or pre-deployment training in reporting detainee abuse beyond general ical attention, adequate food and hygiene, and the right to be visited by dele- training in the geneva conventions, though some (still fewer than half) gates of the international committee of the red cross.19 Furthermore, coercion, received training in theater in iraq and Afghanistan).23 indeed, the surgeon corporal punishment, and torture are explicitly prohibited, again citing the general found that in Afghanistan and iraq, most medical personnel were geneva conventions directly, articles 31 and 32: unaware that they would be engaged with detainees before their deployment. No physical or moral coercion shall be exercised against protected persons, Medical personnel reservists deployed in all three locations received even in particular to obtain information from them or from third parties… less training.24 [detaining power is] prohibited from taking any measure of such a the surgeon general also found that to the extent training was offered at all, character as to cause the physical suffering or extermination of protected the training materials on these subjects developed by the Army’s Medical persons in their hands. This prohibition applies not only to murder, department center and school, which develops courses and trains medical per- 132 | Ethics AbAndonEd Education and training of military physicians | 133 sonnel in all military services, was seriously deficient. his report found that lesson deployment training that cover the responsibilities of medical personnel toward plans used for training were thin and unhelpful: their case examples were domi- detainees. the task Force is aware of a course for non-commissioned officers, nated by scenarios where abuse was readily apparent, and did not include case called “Medical Ethics and detainee operations.”30 on the other hand, it is clear studies for role-playing regarding actual or suspected abuse. no pocket or quick- to the task Force that not all recommendations of the surgeon general have reference guides were available for students and deploying medical personnel to been followed, in part because the underlying ethical and human rights require- identify their responsibilities for reporting actual or suspected abuse.25 nor did ments for treatment of detainees remain inadequate. For example, to the task lesson plans address medical screening for abuse, cultural considerations, lan- Force’s knowledge, the surgeon general’s specific recommendation to train med- guage barriers, use and limitations of interpreters, concerns around interroga- ical personnel in examinations for torture based on “A health Professional’s tions, distinguishing between abuse and lawful combat operations, signing death guide to Medical and Psychological Evaluation of torture” or other teaching certifications, emotional aspects of caring for detainees, and documentation. tools for the istanbul Protocol has not been followed. if that is the case, it is likely More subtle issues that present real-world ethical issues were not included.26 a product of the fact that the dod does not require that clinicians engage in clin- Further, the surgeon general found that the contents of training had not been vet- ical examinations to determine if torture has taken place, only to report torture ted by military service members with appropriate knowledge of detainee care at if they encounter evidence of it. in other words, it does not follow Un-sanc- points of capture, temporary detention areas, and detention facilities. tioned istanbul Protocol methods in investigations (see chapter 2). the surgeon general made comprehensive recommendations for reform of nor is there likely to be any training in responding to hunger strikes in accor- training programs for medical personnel at all levels to prepare them for inter- dance with the requirements of the World Medical Association’s declaration of actions with detainees, including case studies and scenarios that would enable Malta (see chapter 3) because the dod does not adhere to its requirements. and empower medical personnel to adhere to standards of care, comply with nor, finally, is there training that recognizes the ethical problems inherent in ethical obligations, and have a means to raise concerns where either practice or health professional participation in interrogation via the behavioral science ethical standards are not followed. he also recommended that training assume consultation teams (bscts) because the dod declines to follow the ethical that all medical personnel deployed would have interactions with detainees and standards of medical organizations. to design training accordingly.27 thus, while the dod is to be commended for taking steps to train medical Finally, the surgeon general recommended that the medical command pro- personnel in ethics and practice obligations with respect to treatment of vide senior medical officers with policies, regulations, rules, guidance, and tools detainees, where it does not adhere to professional standards in such practice that are accessible in theater and approved for continuing education credits. and ethics, training will remain deficient. the tool it cited as an example was “A health Professional’s guide to Medical and Psychological Evaluation of torture,” written in 2001 by Physician for human rights and based on the istanbul Protocol.28 the Assistant secretary of Training for behavioral science consultants defense for health Affairs responded to these recommendations by requiring that all military services ensure that “health care personnel involved in the the U.s. Army, which is responsible for bsct guidance, acknowledges that in treatment of detainees or other detainee matters receive appropriate training the area of psychologist and forensic psychiatrist support for detention opera- on applicable policies and procedures regarding the care and treatment of tions and interrogation, “there is little information and research published on detainees.” he ordered that the program include basic training for all military this emerging area of practice,” that no certification process exists for work in health care personnel who may be deployed in support of military operations the field, and that there is a danger that “[p]sychologists may be pushed forward and whose duties may involve support of detainee operations or contact with on the battlefield, beyond readily accessible supervision or consultation.”31 detainees, refresher training, and additional training for health care personnel this acknowledgement, combined with the severe ethical concerns raised by assigned to support detainee operations commensurate with their duties.29 participation, should have led the dod to refrain from using psychologists and some of these recommended reforms have been implemented, though the forensic psychiatrists in interrogation at all. instead, the U.s. Army has estab- task Force requested but was not able to access materials used for general or pre- lished a training program for bscts that covers a range of subjects arguably 134 | Ethics AbAndonEd chAPtEr 5 related to interrogation, including learning theory, personality development, Health professional accountability the psychology of influence and persuasion, psychological aspects of captivity, impact of counter-interrogation training, cultural issues, psychological dimen- for acts of torture through sions of abuse, doctrine on interrogation, legal matters, and ethics (as interpret- state licensing and discipline ed elsewhere in the guidance).32 the guidance also urges bsct members to consult with others. the task Force does not believe this training can meet min- imal standards for professional training because of the gap in evidence, thus rendering participation in interrogation all the more inappropriate ethically.

no hEAlth ProFEssionAls Who WErE EMPloYEd by or contracted with military and intelligence agencies have been held accountable for any acts of torture and other forms of mistreatment of post-9/11 detainees, either by those agencies or by civilian disciplinary boards. the costs of non- enforcement are great: non-enforcement undermines professional stan- dards, erodes public trust, and undercuts deterrence of future misconduct. lack of consistent enforcement also compromises protection of health pro- fessionals who face institutional pressure to violate their ethical obligations. by contrast, attention to accountability signals to licensees and those who employ them that the profession and institutions designed to ensure adher- ence to ethical obligations take violations seriously. Moreover, it empowers health professionals to resist demands by commanders to engage in acts that violate their professional responsibilities and to report abuse when they believe it has occurred. health professionals alleged to have been complicit in detainee abuse can be investigated, and if warranted, held accountable in several ways, including through disciplinary actions within the military, criminal prosecution within the military or through civilian courts (including international courts),1 civil suits,2 public censure (naming and shaming websites that post evidence of com- plicity, for example),3 and proceedings by state health professional boards. Extensive consideration of the last mechanism, the main subject of this chapter, is warranted because these boards, with few exceptions, are the sole civilian institutions charged with regulating the professions through the conferring of licenses and the enforcement of professional standards.4 Moreover, the military relies on state board licensing to ensure the quality of its health professionals; many of the military and intelligence health professionals who participated in detainee abuse, for example, did so while working in positions that required them to hold state licenses.5 136 | Ethics AbAndonEd Health professional accountability | 137

in the interest of full disclosure, we note that the task Force includes mem- to be outside its jurisdiction because it occurred out of state, was under the aus- bers who have been or continue to be involved as complainant (dr. steven pices of the federal government, or involved national security policy or practice. reisner) or counsel (deborah Popowski) in some of the professional miscon- or it might have decided that the complaint was not filed in a timely manner duct complaints and appeals discussed in this chapter. however, the task Force under a governing statute of limitations. decisions to dismiss might involve the does not take a position as to whether any of the individuals against whom com- substance of the complaint, such as a belief that the conduct did not constitute plaints have been made are, as factual and legal matters, responsible for the con- the practice of medicine or psychology, that the licensee owed no duty of care duct alleged in these complaints. nevertheless, observations about these com- to the prisoners allegedly harmed, or that the complaint was frivolous and not plaints, as well as historical antecedents in other jurisdictions, do inform our worthy of investigation. Evidentiary concerns as well might animate the deci- findings about the structural deficiencies in disciplinary standards and proce- sions, such as a concern that an investigation might not yield sufficient evidence dures where military or intelligence health professionals may have engaged in to bring charges, or that barriers, in access or cost, to obtaining evidence are misconduct and our recommendations that flow from them.6 likely to arise. concerns about coordination and cooperation with the federal government may also be at play. A board might consider an investigation and prosecution possible, but not the best use of its resources, because, for example, The failure of states to discipline health professionals it might not have deemed the health professional to pose a current threat to who participated in or facilitated torture or cruel, public safety in its state because the professional does not currently practice in inhuman, or degrading treatment the state, is not likely to repeat the conduct, or the board considers the alleged victims unworthy of protection because they do not reside in the state, are not to date, state licensing and disciplinary boards in Alabama, california, georgia, U.s. citizens, or are suspected of terrorism. louisiana, new York, ohio, and texas have received and then dismissed com- A board could also be guided by its members’ moral or political beliefs on tor- plaints against health professionals for alleged abuse of detainees at guantánamo ture or national security. For example, board members or staff might conclude and secret ciA detention centers. to our knowledge, none of these complaints of that the alleged conduct was technically improper, but not morally objection- complicity in abuse has led to a formal hearing on the merits, let alone any for- able given the supposed need to fight terrorism. they might believe that by par- mal sanction,7 suggesting that the system of civilian discipline has not adequately ticipating in interrogation of detainees, the health professionals were seeking to addressed acts conducted during military or intelligence agency activities. the minimize harm to the board and other members of the public. they might con- near-uniform dismissal of claims without substantive investigation into the mer- clude that health professionals should not be sanctioned for following govern- its suggests further that disciplinary boards are effectively exempting licensees ment policy or military orders, or for engaging in conduct deemed by their who work for national security agencies from the standards these boards are superiors to be legal and warranted. A board might also respond to political meant to enforce. Additionally, the dismissal of complaints may signal to military forces hostile to accountability or conclude that the public believes the health and intelligence health professionals that the tolerated and safer course of action professionals were keeping the nation safe and, based on this, would not sup- is to participate or silently acquiesce in abuse. port or want them professionally sanctioned. in almost all cases the boards either did not explain the reason for dismissal Finally, a board might be driven by self-protection and the desire to avoid the or did so in such cryptic terms, such as claiming lack of jurisdiction without spe- potential controversy that might result from taking disciplinary action or clos- cific explanation, that the basis for the decision remains opaque. All but one ing off opportunities for health professionals in the national security realm. the failed to address the evidence submitted by the complainant. nor did any board board might fear that doing otherwise would provoke discord within the profes- provide grounds to believe that the individual’s conduct conformed to profes- sion that could lead to public distrust and/or hinder individual members or sional standards. staff’s own professional advancement. We on the task Force are not privy to the thinking of the boards. At most, we Ascertaining whether these or other reasons motivated the boards’ dis- can propose factors that may have contributed to the consistent pattern of dis- missal of complaints is beyond the scope of this report. the appendix outlines missal. A state licensing board might have considered the professional’s conduct summaries of what is publicly known about the handling of the complaints by 138 | Ethics AbAndonEd Health professional accountability | 139 boards. it reveals both process and substantive deficiencies that warrant 3. inadequate standards regarding discipline for failure to report abuse. reform in the way state boards approach discipline of health professionals who state laws should include a duty to report prisoner abuse, while are alleged to have been complicit in torture or other forms of prisoner abuse. providing whistleblower protections for those who do report it and if unaddressed, the structural features that permitted dismissal of complaints reinforcing health professionals’ obligation to protect the confidentiality will continue to allow perpetrators of severe harm on detainees to avoid pro- of prisoners’ medical information. fessional consequences, which in turn will have a long-term, detrimental 4. lack of specificity on jurisdiction to investigate and prosecute without impact on public trust in the health professions and the boards that regulate exceptions as to location, time, or other circumstance. A number of state them.8 We propose substantive and procedural reforms relating to discipline of disciplinary board decisions claimed lack of jurisdiction, so state health professionals for acts of torture or other forms of prisoner abuse,9 as legislatures should explicitly state that such jurisdiction exists. well as changes to federal law to improve the capacity of state licensing boards to address misconduct allegations against health professionals working in mil- 5. overbroad claims by boards of discretion to refuse to investigate. itary and intelligence settings. Most state boards did not conduct investigations of the allegations, the deficiencies in the state boards’ response to complaints of health and some courts have thus far upheld their authority to decline to professional involvement in abuse of detainees, and remedies for those open an investigation without possibility of judicial review of that deficiencies, include: decision. While boards need to have some discretion in handling complaints, they should not be permitted to dismiss complaints that 1. lack of specificity on whether the health professional abuse of detainees make legitimate claims of misconduct, nor to refrain from explaining constitutes misconduct under the law. some of the state boards stated, the basis for the case. state laws should make clear that: (1) state without explanation, that no violation of state standards of conduct had disciplinary boards have both a mandatory duty to investigate non- occurred, raising the question of whether the standards they employed frivolous complaints of health professional involvement in torture or were sufficient to judge serious allegations of detainee abuse. Although other forms of prisoner abuse and a prima facie duty to charge the general definitions of misconduct should encompass these acts, licensee in cases in which it finds probable cause of such misconduct, prospects of accountability would improve if state laws specifically and (2) that compliance with these duties be verifiable through addressed the full spectrum of the problem. they should draw from transparent public proceedings that (a) safeguard confidentiality and domestic and international standards about conduct of health (b) rest upon the authority to subpoena documents, compel witnesses, professionals in connection with prisoners and clearly and broadly and take other steps necessary to ensure full inquiries that comport prohibit any form of complicity or participation by health professionals with due process. in torture and other forms of prisoner abuse. 6. claims of lack of availability for judicial review. courts have thus far 2. lack of specificity of particular forms of conduct such as involvement in declined to review the decisions of state boards to determine whether and advising on interrogations and conditions of confinement. As with boards abused their discretion or acted arbitrarily. state laws should respect to coverage of detainee abuse generally, current law on ensure opportunities for meaningful judicial review by all complainants misconduct should embrace these acts, but given boards’ (in the task of disciplinary board decisions in cases involving torture and other Force’s view, mistakenly) narrow construction of the law, setting forth the forms of prisoner abuse, irrespective of the stage at which a board kinds of acts covered would advance accountability. in one case, a state decision is reached. board asserted that if the alleged acts took place, they would fall outside the definition of the practice of psychology, which it interpreted as 7. inadequate resources to investigate and prosecute. given the centrality encompassing only beneficent actions. state laws, drawing from domestic of state disciplinary processes to ensure the proper conduct and fitness and international standards, should clearly and broadly prevent health to practice of health professionals, state and federal law should professional involvement in programs or policies that include these acts. guarantee disciplinary boards the resources, training, and access to 140 | Ethics AbAndonEd Health professional accountability | 141

expertise necessary to handle cases involving prisoner abuse and health vary by state,13 they share a stated purpose to protect the public from the unsafe professional conduct in military and/or intelligence settings. or unauthorized practice of members of the health professions.14 they generally have two principal responsibilities: to control the procedure by which new health 8. Uncertain commitments of cooperation from the federal government. professionals are admitted to practice in the state and to enforce standards of pro- Military and intelligence agencies should commit to cooperate with state fessional conduct.15 boards issue licenses to professionals who meet those stan- disciplinary boards with respect to conduct of health professionals while dards and investigate and discipline those who fail to meet them.16 in . Federal law should require federal agencies to in their disciplinary function, professional boards investigate complaints against cooperate fully with any state disciplinary board proceedings involving practitioners that claim their incompetence and unprofessional or unethical con- health professionals in federal roles, including making evidence duct.17 While substantive grounds for discipline are state-specific, most jurisdictions available. it should reinforce the authority of state disciplinary boards to discipline gross incompetence, alcohol or drug abuse, unlicensed practice, or other conduct such investigations and to provide whistleblower protections for conduct that violates certain ethical standards or brings the profession into disre- persons making such referrals. pute.18 boards also issue sanctions, which can range from a reprimand to the suspen- sion or revocation of a license to practice in the state.19 We recognize that correcting these deficiencies is politically difficult. A his- state disciplinary boards have an important relationship with private profes- torical and comparative look at societies that have dealt with systematic torture sional medical associations. both state and national health professional associa- suggests that it often takes years, as well as persistent effort from civil society, for tions play an influential role in shaping state legislation and regulations affecting institutions to hold state agents accountable for violations committed as part of their professions. As noted in the chapter on professional associations, these government-sponsored policy during a time of conflict.10 state boards have been groups create professional norms through their ethical codes and opinions and operating in a political climate where accountability of officials responsible for influence the content of legislation or regulations affecting the profession.20 developing and implementing policies of torture of detainees has been absent, some states incorporate ethics codes promulgated by national associations like and the boards have been acting much like the federal courts and political the American Medical Association and the American Psychological Association21 branches in resisting accountability. the fact that other institutions, including into their laws and rules or look to them for guidance in interpreting their the U.s. department of Justice, congress, the military, and the federal courts, own standards.22 have showed little appetite for pursuing accountability for these abuses has con- ideally, professional associations and state boards would work together to tributed to a climate that offers state disciplinary boards little to no institutional use their complementary powers and functions to ensure that health profes- pressure or incentive to prosecute cases tied to practices carried out in the guise sionals alleged to have been involved in torture and other forms of prisoner of national security. nevertheless, there is precedent in Argentina, chile, brazil, abuse are appropriately investigated and, if warranted, disciplined. As set forth south Africa, and Uruguay for authorities with responsibility for medical licens- in chapter 5, however, health professional associations in the United states have ing or discipline to take action against health professionals who engage in tor- not been proactive in the effort to investigate doctors, psychologists, and others ture. Actions in those countries can inspire reform in the United states.11 involved in this type of conduct.23 instead, the associations have avoided both general reviews of the roles of health professionals in detainee abuse, and, to Necessary reforms our knowledge, investigations of misconduct of their members. While some associations have taken the position that discipline is exclusively within the purview of the boards,24 they have, with one notable exception,25 done little to disciPlinE oF hEAlth ProFEssionAls support or encourage the investigation of complaints. the apparent indiffer- AllEgEd to hAvE AbUsEd PrisonErs or dEtAinEEs ence and in some instances resistance of professional associations to such inves- health professionals in the United states are regulated by state licensing and dis- tigations may be rendering boards less likely to investigate or sanction military ciplinary boards created by state statutes.12 these boards exist for a range of health and intelligence health professionals for alleged prisoner abuse, especially if professional disciplines, and although their regulatory structure and authority doing so might be perceived as going against the views of professions. 142 | Ethics AbAndonEd Health professional accountability | 143

critics argue that state health professional boards have too close a relation- Although we call for enactment of legislation, in some cases changes could ship with the guild interests of professional associations, furthering professional be made administratively by the state boards themselves. to the extent changes self-interests and creating barriers to entry into the profession, rather than fur- can be made at the administrative level, model board policies could be created thering the public interest.26 We as a task Force take no position on this ques- by the national Federation of state Medical boards in consultation with profes- tion but note that legislatures, and the boards they establish, do have responsi- sional associations and human rights groups. bilities to ensure that health professionals they license behave in accordance with expectations of society for ethical practice. clAriFYing And ExPAnding thE dEFinition oF ProFEssionAl MiscondUct to ExPlicitlY AddrEss rEgUlAtion oF hEAlth ProFEssionAls intErrogAtion And tortUrE or crUEl, inhUMAn, in connEction With PrisonEr And dEtAinEE AbUsE or dEgrAding trEAtMEnt We propose enactment or amendment of state legislation that governs profes- Many states’ professional misconduct laws and regulations include catch-all sional disciplinary mechanisms. the task Force is of the view that legislation, provisions that would reasonably be read as encompassing many forms of com- in addition to any changes initiated by the state boards themselves, is necessary plicity by health professionals in prisoner abuse. nevertheless, given the appar- because of the importance of changing the legal norms, the long-term instability ent views—which the task Force believes are inconsistent with law—among at of mere regulatory changes, and the expressive value of the law. other mecha- least some state boards that participation in torture or cruel, inhuman, or nisms for improving discipline for these offenses are available,27 especially degrading treatment of detainees does not amount to professional misconduct, changes at the federal level to strengthen the effectiveness of the state discipli- we recommend that states amend their laws to prohibit explicitly the participa- nary process in connection with the conduct of health professionals in federal tion of health professionals in interrogations and torture or cruel, inhuman, or service.28 Achieving any of these changes will require significant outreach, edu- degrading treatment. such amendments would have the following goals: (1) to cation, and engagement of both health professionals and the general citizenry. ensure that using professional knowledge and skills to intentionally cause pris- state regulatory boards implementing such reforms will also need additional oners serious harm is cause for sanction, regardless of the identity of the victim resources, support, and access to expertise to allow them to adequately imple- or the location and context in which it occurs; (2) to signal clearly to boards the ment the tasks set out to them. expectation that they discipline health professionals who engage in this behav- Although there is some commonality among state disciplinary boards on the ior; and (3) to remind health professionals about their ethical obligations in set- type of conduct that constitutes grounds for disciplinary action29 as well as in tings where there is extraordinary pressure to subordinate the interests of the procedures for handling complaints, scholars, advocates, and policymakers nev- patient or detainee to the stated interests of the employing institution. ertheless face more than 50 sets of state standards and regulatory frameworks that vary in structure, authority, and process.30 Mindful that each state would State legislation addressing health professional participation and need to engage in its own process of legal reform, we identify elements we con- complicity in torture and other forms of cruel, inhuman, or degrading sider essential to addressing health professional participation or complicity in treatment should incorporate relevant professional and legal norms the torture or cruel, inhuman, or degrading treatment of prisoners. the task in addition to referring to existing state norms against abuse, legislation should Force proposes that key stakeholders and leadership organizations, including incorporate existing professional standards relating to the treatment of prisoners the institute of Medicine, professional associations, and human rights groups, and specifically forbid the participation and complicity of health professionals in draft a model law following the recommendations we make to facilitate writing torture and other forms of abuse.33 it should also reference U.s. law, including legislation at the state level and to encourage uniformity in ensuring effective federal anti-torture statutes and the prohibition on cruel or unusual punishment regulation of the professions regarding prisoner abuse.31 in the first state-level under the constitution, and international standards, including those promulgat- initiatives to address the problem, pending legislation in new York and ed by the United nations, the World Medical Association, and the international Massachusetts already incorporate some of the recommendations we make and covenant on civil and Political rights, and the convention Against torture, the could be instructive for the drafters of the model law.32 geneva conventions, and other treaties the United states has ratified regarding 144 | Ethics AbAndonEd Health professional accountability | 145 torture or cruel, inhuman, and degrading treatment. referring to international than direct perpetrator, legislation should explicitly prohibit all forms of coop- professional and legal norms in addition to state and federal ones ensures that eration or complicity in abuse, not just direct action against a prisoner. health professionals receive guidance on compliance with human rights norms legislation should specifically prohibit health professionals from allowing their and avoidance of liability not only before disciplinary boards, but also foreign and expertise to be used to facilitate torture or cruel, inhuman, or degrading treat- international criminal courts that have jurisdiction over acts of torture. such leg- ment. this includes monitoring the infliction of torture or interrogation38 or islation would also provide greater insulation from manipulation of both the def- providing evaluations or treatment so that abuse can begin or continue (both inition of torture and the scope of ethical responsibilities such as has taken place prohibited under American Medical Association standards), and covering up or in the United states in the post-9/11 period.34 omitting signs of abuse in prisoner clinical records or other reports.39

State legislation should ensure that the prohibition on participation State legislation should prohibit licensed health professionals or complicity in torture and other forms of cruel, inhuman, or degrading from participating in interrogations treatment applies whenever licensed health professionals use their As explained earlier in this report, all interrogations, even those conducted specialized knowledge or skills lawfully without the use of torture or cruel, inhuman, or degrading treatment, in a case presenting evidence from official reports and declassified documents are inherently coercive.40 As such, almost all professional organizations have in support of allegations that a psychologist was directly involved in the torture opined that professionals who have been licensed for the purposes of provid- of a detainee at guantánamo, the new York office of Professional discipline, ing care and improving health and well-being should not participate in inter- which oversees discipline of new York–licensed psychologists, decided that no rogation, with participation defined to include evaluation of individual violation of state law on professional misconduct had been alleged. it argued detainees to ascertain vulnerabilities, monitoring interrogations, advising that the acts identified were inconsistent with the beneficent purposes of psy- interrogators before or during interrogation, or providing medical or psycho- chology and that a therapist-patient relationship had not existed. As a result, it logical services so interrogation can continue. the ban on interrogation is also concluded that the individual, while licensed and using specialized skills, was necessary as a prophylactic to prevent health professionals from being asked not engaged in “practice of psychology because the actions were not desired by to calibrate pain, distress, or mistreatment, or exploit vulnerabilities, even in the detainee to whom they were applied.”35 lawful methods of questioning.41 the circular reasoning of the board, which defines acts of abuse as not with- the prohibition on participating in interrogations, even lawful ones, is based in the practice of psychology, is inconsistent with other provisions of law relat- on two main principles. First, health professional licenses are issued primarily ing to misconduct, such as entering into a sexual relationship with a client, and for healing purposes,42 so when licensees use their specialized training and skill with the very purposes of licensing. to prevent states from adopting the mistak- to inflict or calibrate stress without a healing purpose, they not only violate their en conclusion of the new York board that participation in torture of a detainee duty to use their license beneficently, but undermine the value of the state could not constitute the practice of psychology,36 legislation should provide that license as a credential that connotes trustworthiness. second, as noted above, torture or other abuse of a prisoner are forms of misconduct regardless of a the mere presence of a health professional in an interrogation can lend undue provider-patient relationship or whether or not it involves attempts at diagnosis, legitimacy to the methods used. this legitimacy can lead to increased use of treatment, or cure of any ailment.37 force43 or to support legal claims that the interrogation is not abusive.

State legislation should expressly prohibit a broad range of participation State legislation prohibiting health professional complicity and complicity by licensed health professionals in torture and other forms in torture and other forms of cruel, inhuman, or degrading treatment of cruel, inhuman, or degrading treatment should define “prisoner” broadly because the role played by a health professional in a system of torture and cruel, state professional misconduct legislation should define prisoner so that it inhuman, or degrading treatment is often one of enabler or facilitator rather includes individuals subject to interrogation or who are being deprived of their 146 | Ethics AbAndonEd Health professional accountability | 147 personal freedom for national security, military, law enforcement, or immigra- Whenever health professionals cannot guarantee the confidentiality of prison- tion purposes.44 A broad definition of prisoner based on the deprivation of one’s ers’ medical information, the law should require that they clearly disclose the personal freedom rather than technical legal categories (prisoner of war, pretri- limits of confidentiality. al detainee, etc.) allows health professionals to identify when their actions are subject to regulation without having to make determinations of status under State legislation should require health professionals to report all incidents legal categories. of suspected abuse of prisoners to the appropriate authorities in keeping with established ethical standards State legislation should prohibit licensed health professionals from using As explained in chapter 2, health professionals’ specialized knowledge and priv- their expertise to create or advise on conditions of confinement that impair ileged access to prisoners render them particularly well-positioned to recognize 45 the well-being of the prisoner the physical and psychological signs of torture and cruel, inhuman, or degrading such a prohibition would cover acts intended to disrupt or destabilize prisoners, treatment. As such, they can and should serve as a line of defense against these to render them more susceptible to interrogation, or to diminish their ability to violations.52 When a health professional receives information indicating that tor- advocate for themselves. Examples include consulting on practices such as food ture or cruel, inhuman, or degrading treatment may have occurred or is occur- or sleep deprivation, isolation, sensory deprivation, sensory overstimulation, ring, the law should require the health professional to report the suspected abuse and exploitation of religious beliefs and cultural mores that could negatively to a government agency that has the authority to, in the words of a proposed new affect the well-being of a prisoner.46 York Assembly bill, “punish or prevent the continuation of torture or the [abu- sive] treatment of a prisoner…and is reasonably likely to do so.”53 the legislation State legislation should reinforce health professionals’ obligation should state that a health professional’s duty to report is not discharged until a to protect the confidentiality of a prisoner’s medical information report is made to an authority that the professional reasonably believes will act confidentiality of medical information is one of the cornerstones of health care. to investigate and stop the torture or cruel, inhuman, or degrading treatment. the American Medical Association’s code of Medical Ethics treats information reporting to the same authority that is perpetrating the abuse will not suffice. to gathered during treatment as confidential “to the utmost degree”47 and sees the encourage the filing of complaints involving professional misconduct, most state duty to maintain confidentiality as essential to providing appropriate care. such boards have already promulgated a compulsory duty to report all violations.54 confidentiality encourages an individual to seek out care when necessary, to this duty to report becomes even more important in cases involving military or trust providers, and to provide full information to the health professional. intelligence detention, considering that most incidents of prisoner abuse in health professionals working with prisoners also have a general duty to main- these settings occur in secret and the victims may be incapable of reporting the tain confidentiality.48 As noted in chapter 1, the consequences of breaching con- abuse themselves. imposing such a duty, moreover, is consistent with the duty of fidentiality at guantánamo, especially to use medical information for interroga- members of the U.s. armed forces to report abuse. tion purposes, compromised medical care for detainees and undermined their trust in clinicians. State legislation should provide legal protection from reprisal to those U.s. law provides a broad exception to confidentiality of medical records for who provide good faith reports of torture or other forms of cruel, inhuman, military, intelligence, or law enforcement purposes,49 but adhering to such or degrading treatment to state disciplinary boards broad exceptions in the national security context undermines trust and the abil- Whistleblower protection for those who report torture and cruel, inhuman, or ity to provide sound patient care, and state legislation should reinforce confi- degrading treatment must go hand-in-hand with the duty to report. Although dentiality of prisoner medical information in connection with interrogation and federal authorities are best placed to protect military and intelligence health discipline of prisoners as the rule rather than the exception.50 Even exceptions professionals from retaliation, state legislatures can play a role by providing in other circumstances should be rare, based on an important countervailing immunities, indemnities, and confidentiality to those who report related mis- public need and tailored as narrowly as possible to that particular need.51 conduct to boards. 148 | Ethics AbAndonEd Health professional accountability | 149 clAriFYing And rEinForcing including those that take place in the service of the military or another govern- thE ProcEdUrAl dUtiEs oF stAtE disciPlinArY boArds ment agency, and conduct where professional skills are employed. the exercise the primary mechanism used by state boards to discipline their licensees is the of jurisdiction over military practice is consistent with congressional and investigation and prosecution of professional misconduct complaints.55 department of defense (dod) requirements that military health professionals Although methods of processing complaints vary across jurisdictions and health hold a state license to obtain credentials and for reciprocal reporting of discipli- professions, they generally include six stages: intake, investigation, charges, nary action through national databases.61 Furthermore, the military expressly prosecution or voluntary settlement, hearing, and disciplinary action.56 no relies on the “issuing authority,” usually a state, to regulate the quality and com- other body is vested with this particular disciplinary authority. petence of the health professionals they employ.62 the experience in the seven states in which complaints have been brought to date indicates the need to make even more explicit the boards’ legal duties. State law should clarify that boards have a mandatory duty to investigate statutes governing disciplinary mechanisms would benefit from more specific non-frivolous complaints of health professional involvement in prisoner abuse language on jurisdiction and standards regarding legal duties to investigate, disciplinary boards traditionally have some discretion in determining whether obtaining evidence, transparency in process and reasons for decisions, and pro- to investigate a complaint of alleged violations of professional standards. visions for judicial review. vague articulation of these duties may be facilitating however, the experience in the seven states shows that this discretion can be the dismissal of complaints alleging torture or other forms of cruel, inhuman, exercised far too broadly, by summarily dismissing complaints alleging serious or degrading treatment. such dismissals in turn may endanger the public by violations of professional standards of conduct involving detainees, without any allowing health professionals who engage in prisoner abuse to continue to prac- meaningful investigation into their merits. in doing so, the boards fail to fulfill tice and by signaling to the profession that torture or prisoner abuse will be tol- their duty to protect the public in two important ways. First, they leave open the erated. Failure to respond adequately to evidence of torture also jeopardizes the possibility that a health professional responsible for past serious harm will harm integrity of professional standards and undermines their power to protect mili- others in his or her continued practice. second, they undermine the integrity of tary and intelligence health professionals struggling to resist unlawful orders. the disciplinary system and diminish the value of the credentialing process as the task Force recognizes that many of the proposals in this section could an assurance to the public of a license as a sign of fitness to practice. improve the boards’ handling of complaints of professional misconduct beyond state legislatures can ensure that disciplinary boards fulfill their duties to prisoner abuse.57 We do not take a position, however, on applying these proce- protect by making explicit a mandatory duty to conduct reasonable and good- dural recommendations in cases of other forms of misconduct, where different faith investigations of credible and non-frivolous allegations of serious abuse considerations may apply. by health professionals, as they do in other types of serious harm to other vul- nerable people.63 State legislation should make clear that disciplinary boards have jurisdiction to investigate and prosecute licensees for alleged involvement in State law should make clear that when boards find probable cause torture or other forms of cruel, inhuman, or degrading treatment, regardless of participation or complicity in torture or other forms of cruel, inhuman, of the location, timing, or circumstances of the conduct or degrading treatment, they have a prima facie duty to charge the licensee As discussed above, some state disciplinary boards have dismissed complaints once the investigation phase is complete, state disciplinary boards can drop the against health professionals on the claim that the boards lacked jurisdiction case, issue an informal sanction (such as a letter or warning), or bring formal over the conduct,58 either because the alleged conduct occurred outside the charges.64 Just as with initial response to complaints, state disciplinary boards state and/or in the context of military service59 or because using professional generally enjoy considerable discretion in deciding whether to charge a licens- skills to harm others did not constitute the practice of psychology.60 state law ee—discretion that, in the absence of enforced boundaries, is vulnerable to should be revised to make clear that disciplinary boards have jurisdiction over abuse by boards faced with complaints regarding their licensees.65 While pre- health care personnel who are complicit in out-of-state occurrences of abuse, serving some degree of discretion is important to an efficient and effective dis- 150 | Ethics AbAndonEd Health professional accountability | 151 ciplinary process, we believe safeguards are needed to ensure that boards do not State law should create a presumption that complaints of torture dismiss cases involving allegations of serious prisoner abuse where a certain evi- or other forms of cruel, inhuman, or degrading treatment be prosecuted dence threshold for bringing charges has been met. such safeguards can count- formally by boards in hearings that afford the complainant opportunity er potentially strong external pressure on boards to dismiss cases that involve to testify and call witnesses licensees and prisoners in the national security context. some jurisdictions afford disciplinary boards a choice of attempting to the task Force therefore proposes that if state disciplinary boards receive resolve the case informally or proceeding directly to a formal hearing.69 enough evidence to support a finding of probable cause, the law should create a informal resolution usually involves a form of voluntary settlement.70 presumptive requirement to bring formal charges against the licensee. by mak- licensing boards may favor informal resolution because it allows them to dis- ing prosecution a prima facie duty applicable only to non-frivolous complaints, pose of matters without the time and cost of full hearings and eliminates the legislatures would ensure that disciplinary boards retain an important amount risk of losing the case. health professionals who opt for informal resolution of discretion and do not waste resources on non-meritorious complaints. may do so to avoid the ordeal of a public hearing or the risk of a severe and public sanction. Boards should be required by state law to articulate specific reasons for in view of the existing record, informal disposition is not appropriate for dismissal of a complaint alleging torture or other forms of cruel, inhuman, complaints alleging torture by military or intelligence health professionals. As or degrading treatment and to inform the complainant of the nature noted earlier, unlike usual cases of misconduct, the boards may face (or per- and scope of its investigation ceive) institutional or external political pressure to dismiss these cases. Most boards that have dismissed complaints against health professionals for tor- informal, closed-door proceedings between the board and the licensee deny the ture or cruel, inhuman, or degrading treatment of detainees have provided only public an opportunity to ensure the integrity of institutions such as military and vague statements, if any, of the reasons for the decision. they also failed to intelligence agencies in which it has a tremendous interest. Accordingly, if a inform the complainant of the steps the board took, if any, to investigate the board has enough evidence to charge a licensee with misconduct relating to tor- 66 complaint. At least one board has asserted that it has no obligation to specify ture or other forms of cruel, inhuman, or degrading treatment, the presumption 67 its reasons for dismissal. should be toward holding a hearing rather than informal resolution. specifically requiring a board to state its reasons for dismissal would rein- once a licensee is charged with misconduct, it is not uncommon for the for- force the duties to conduct reasonable and good-faith investigations and to for- mal hearing to be public. given that government-sanctioned torture is a matter mally charge licensees when probable cause exists of involvement in torture or of great public concern, hearings on cases involving torture or cruel, inhuman, other forms of prisoner abuse. Articulating these specific reasons is not a bur- or degrading treatment of detainees should be no exception. these can be sup- 68 densome task. the statement could be crafted so that boards can protect the plemented with in-camera procedures, which should be developed to deal with privacy of the health professional against whom charges are brought as well as . the patient(s), victim(s), and complainant where appropriate and necessary. When complainants have waived confidentiality or made their complaints pub- State law should guarantee that complainants have standing lic, the boards cannot legitimately consider confidential the mere existence of and a right of action to seek judicial review of a decision to dismiss the complaint and investigation. a complaint involving torture or cruel, inhuman, or degrading treatment consistent with the mandatory duty to investigate reasonably and in good of detainees for abuse of discretion and error of law faith, the law should require boards to inform complainants of the steps taken Judicial review of decisions of regulatory agencies and boards is traditionally a in their investigation, if any, as part of its decision to dismiss the complaint. means to ensure that they adhere to legal requirements and employ discretion this requirement would signal to the public that state boards take torture alle- appropriately, yet it has thus far been denied in cases dismissing complaints gations seriously and are committed to upholding their mission of public pro- alleging torture by military and intelligence health professionals. to date, com- tection. it would therefore enhance public trust in the disciplinary system. plainants have challenged dismissals by five state licensing boards.71 thus far, 152 | Ethics AbAndonEd Health professional accountability | 153 courts in louisiana, new York, and texas have ruled that these board dismissals State law should ensure that disciplinary boards have the authority were not subject to judicial review on the grounds that complainants’ injuries to subpoena evidence and compel witnesses in cases involving were insufficiently concrete or direct to grant them standing to petition for health professionals allegedly involved in torture or other forms review.72 these issues are still being litigated in ohio. of cruel, inhuman, or degrading treatment; federal agencies should As individuals and groups who work in the fields of psychology, juvenile cooperate and Congress should support this power 73 justice, and gender and health justice have explained, denial of review leaves one state board concluded that the evidence presented by the complainant was professional boards with unchecked power to act arbitrarily or on the basis of insufficient for it to take disciplinary action.82 to our knowledge, the board did erroneous legal determinations. they result in the absence of oversight of not interview witnesses or seek to obtain relevant documents from witnesses or arbitrary, capricious, or erroneous board action that undermines state policy. the federal agency involved. some boards already have the power to issue and lack of judicial review also reinforces the external, structural incentives to enforce subpoenas for documents, people, and institutions,83 and the avoid adjudicating such complaints. given the relatively small number of Federation of state Medical boards recommends granting such authority in its complaints that have been filed (or are likely to be filed), their distribution model medical practice act.84 More robust investigative authority should pro- across multiple states, and other reforms in board practice that would vide boards with a more substantial body of evidence on which to base their dis- decrease the number of appeals, judicial review would not place an unreason- ciplinary decisions. given the dod’s reliance on state boards to ensure that its able burden on the judiciary. health professionals are licensed, it should cooperate in responding to requests for evidence. consistent with its commitment to state licensing of all military States should eliminate time bars for misconduct complaints health professionals, congress can facilitate this process by ensuring that feder- against health professionals alleging torture or other forms of cruel, al agencies comply with subpoenas in these cases. state legislatures can work inhuman, or degrading treatment with state boards, congress, and relevant federal agencies to develop in-camera one state board cited a statutory time bar as its reason for not investigating alle- procedures to deal with classified information. gations that a licensee had been involved in the torture of detainees.74 given the seriousness of the misconduct at issue and the need to protect the public in the sUPPorting stAtE boArds in AddrEssing chArgEs oF future, state disciplinary boards should have the power to investigate related tortUrE or othEr ForMs oF crUEl, inhUMAn, or dEgrAding 75 allegations regardless of when the conduct occurred. some states already trEAtMEnt And ProtEcting individUAls Filing coMPlAints refrain from imposing statutory time bars for all professional misconduct com- plaints76 and some others make exceptions for allegations of serious miscon- State legislatures should provide for training resources to board members duct.77 courts in the United states generally hold that, absent a statute of limi- and staff on how to handle complaints of misconduct in detention settings tations applying specifically to proceedings to revoke a medical license, such state boards may need additional guidance for how to deal with cases involving proceedings should not be time-barred.78 torture or other forms of cruel, inhuman, or degrading treatment. the Eliminating statutes of limitations for cases involving torture or other forms Federation of state Medical boards can draft guidance in the form of a “bench of cruel, inhuman, or degrading treatment would also align with other areas of book” to guide disciplinary board members and staff through the legal and eth- law in which statutory time bars are disfavored for exceptionally heinous con- ical issues involved in investigating, prosecuting, and adjudicating health pro- duct that poses serious threats to public safety.79 Additionally, this step is con- fessionals accused of misconduct in detention and interrogation settings.85 the sistent with other approaches to statutes of limitations where it is difficult to bench book could be modeled after bench books created for other legal contexts discover the facts, in this case exacerbated by policies that health professionals to apprise judges of procedural rules and substantive issues, including profes- not reveal their names to detainees.80 Further, because people working within sional codes.86 it should be supplemented with a training program that would the facilities rarely report abuse, it can take years before the information reaches provide an opportunity for professional organizations and other experts to 81 a person able and willing to file a complaint. engage directly with those involved in health professional conduct adjudication. 154 | Ethics AbAndonEd Health professional accountability | 155 training materials should be made available to the public. this gap by ensuring that federal agencies make evidence available to state disci- plinary boards where a bona fide complaint of misconduct is made, with appro- Both state legislatures and the U.S. Congress should ensure that state priate safeguards for handling classified information.95 disciplinary boards receive funding to fulfill their mandate of regulating licensed health professionals serving in military and intelligence agencies Federal law should provide legal protection from reprisal to those who report state disciplinary boards are notoriously under-resourced. in 2006, the U.s. health professionals to state disciplinary boards for suspected participation or department of health and human services identified “high costs and limited complicity in torture or cruel, inhuman, or degrading treatment financial and human resources” as some of the “major obstacles to effective dis- Fear of reprisals may deter individuals from reporting human rights abuses in ciplinary enforcement by medical boards.”87 Another study found that “larger national security detention centers, thus thwarting the mission of state medical medical boards and boards with more staff discipline doctors more frequently.”88 boards and preventing abuses from being sanctioned. in other contexts, whistle- costs lead boards to prioritize cases that are easier to investigate, such as those blower protection has been recognized as important to preserving the public involving licensees with existing criminal convictions,89 and there are some sug- interest and ensuring that claims against wrongdoing are actually brought for- gestions that resource considerations may have influenced decisions in the cases ward. Whistleblower protections are written into six environmental statutes discussed here.90 conversely, additional resources might increase the likelihood and prevent retaliatory action by employers against employees who report envi- that boards will discipline more effectively91 and enable them to prioritize com- ronmental violations.96 similarly, several occupational safety acts provide anti- plaints that have “the greatest impact on patient protection” and the “closest link retaliation protections for employees who report safety violations in the work- to fitness to practice.”92 cases involving torture or other forms of cruel, inhuman, place.97 the also maintains a successful whistleblower or degrading treatment may in some cases need comparatively high levels of program. Effective legal protections do not necessarily require absolute immu- resources for adequate investigation. nity for complainants, but should encompass protection that includes maintain- state governments bear responsibility for funding disciplinary boards to ing confidentiality and preventing retaliation. given the federal government’s investigate, prosecute, and adjudicate misconduct complaints adequately. stated interest in preventing torture and the fact that most potential com- Additionally, insofar as the dod and other federal agencies rely on the state plainants will be employed by the military, expanding federal whistleblower licensure and disciplinary system to regulate health professionals in their protection to include military and intelligence health professionals who report employ, congress should contribute resources to ensure their effectiveness. the misconduct to state medical boards is needed. funds could be distributed according to the number of licensees in each state employed by a federal agency requiring licensure. Conclusion Congress should require the DoD, CIA, and other federal agencies to cooperate in state board investigations in allegations of torture or other forms of cruel, the inadequacy of existing state mechanisms to hold health professionals inhuman, or degrading treatment accountable for torture and other forms of cruel, inhuman, or degrading treat- the dod relies on state licensing to establish the qualifications, competence, ment of detainees must be remedied to protect the public, reinforce norms and and character of its health professionals, and reports disciplinary actions to expectations, and sanction wrongdoers. the actions needed are straightforward, national databases that are available to state disciplinary authorities.93 As a result, but will require action at the state legislative and national level. initiatives have facilitating adherence to licensure standards, reporting misconduct, and cooper- begun in some state legislatures in Massachusetts and new York, which can ating with state investigations should be understood as obligations by the dod. become models for other states. Federal agencies, however, do not currently have an explicit statutory duty to provide evidence germane to the exercise of state disciplinary board functions in connection with actions undertaken during military service.94 congress should fill Task Force Members

scott A. AllEn, Md, FAcP Clinical Associate Professor, School of Medicine, University of California Riverside scott A. Allen, Md, is clinical Associate Professor of Medicine at the University of california, riverside. he has worked in the field of correctional health for the past 15 years, including eight years as a full time correctional physician, three of which were as Medical director for the state of rhode island. he co- founded the center for Prisoner health and human rights at brown University and works with Physicians for human rights, the international committee of the red cross, and others on the role of physicians in prisons. gEorgE J. AnnAs, Jd, MPh William Fairfield Warren Distinguished Professor, and Chair, Department of Health Law, Bioethics & Human Rights, Boston University School of Public Health george J. Annas, William Fairfield Warren distinguished Professor at boston University, is chair of the department of health law, bioethics & human rights of boston University school of Public health, and a professor in the boston University school of Medicine and school of law. he is the cofounder of global lawyers and Physicians, a transnational professional association of lawyers and physicians working together to promote human rights and health. he is a fellow of the American Association for the Advancement of science, a member of the institute of Medicine, a member of the national Academies’ human rights committee, and co-chair of the American bar Association’s committee on health rights and bioethics (individual rights and responsibilities section). he is the author or editor of 18 books on health law and bioethics, most recently Worst Case Bioethics: Death, Disaster, and Public Health (oxford, 2010). 158 | Ethics AbAndonEd Task Force Members | 159

vincEnt iAcoPino, Md, Phd kArEn brUdnEY, Md Senior Medical Advisor, Physicians for Human Rights Assistant Clinical Professor, College of Physicians and Surgeons, Columbia University Adjunct Professor of Medicine, University of Minnesota Medical School dr. karen brudney directs the infectious diseases/Aids clinic and the tubercu- vincent iacopino, Md, Phd, is senior Medical Advisor to Physicians for human losis service at columbia University Medical center’s nY-Presbyterian hospital. rights and Adjunct Professor of Medicine with the University of Minnesota she developed and helped establish the national tuberculosis control Program Medical school. For the past 20 years, he has participated in dozens of health in nicaragua, has worked continuously in the tuberculosis control program in and human rights investigations. he was the principal organizer of an interna- the new York city department of health and Mental hygiene, and served as a tional effort to develop Un guidelines on effective investigation and documen- consultant to the Who tuberculosis program. As the infectious diseases clinic tation of torture and cruel, inhuman, or degrading treatment (the istanbul director at columbia, she leads a multi-disciplinary staff of health professionals Protocol) and has served as a consultant to the United nations high treating patients with Aids. she has developed a medication adherence pro- commissioner for human rights. dr. iacopino is also a senior research Fellow gram, Jumpstart, which has served as the model for Aids treatment programs at the human rights center of the University of california, berkeley, and has throughout new York city and numerous countries. she has taught physicians taught health and human rights courses at berkeley since 1995. dr. iacopino and health educators from these countries under the auspices of the open is the author of more than 85 health and human rights publications. in 2004, he society Foundations annual program, “Anti-retroviral treatment for vulnerable received the center for victims of torture’s Eclipse Award for extraordinary Populations,” and was the Principle investigator of a U.s. national institute of service on behalf of torture survivors. in 2005, he also received the health Fogarty international center training program for hiv care in the distinguished Alumni Award from the department of Medicine of the dominican republic. University of Minnesota. richArd n. gottFriEd, Jd AllEn s. kEllEr, Md Chair, New York State Assembly Committee on Health Associate Professor of Medicine, New York University School of Medicine richard n. gottfried is a member of the new York state Assembly (d-WFP, dr. keller is Associate Professor of Medicine, new York University school of Manhattan) and has chaired the health committee since 1987. he is the author Medicine. he directs the bellevue/nYU Program for survivors of torture and of the new York bill to prohibit state-licensed health care professionals from nYU’s center for health and human rights. With 20 years of experience eval- participating in torture or improper treatment of prisoners. he has sponsored a uating individuals alleging torture, he is author/co-author of over 40 publica- broad range of laws to expand publicly funded health coverage; protect patient tions about torture’s health consequences and medical participation. this autonomy, especially in reproductive care and end-of-life decision-making; includes documenting U.s. health professionals conducting unethical research expand consumer protections in ; and support safety-net health on torture of suspected terrorists. on several occasions, dr. keller has testified care providers. he sponsors the “new York health” bill to create a state single- before congress, including the senate select committee on intelligence. payer universal health plan. he is a lawyer (columbia, Jd 1973) but does not have a private practice. he is a member of the new York Academy of Medicine, American Public health Association, national Academy for state health Policy, reforming states group, new York city bar Association, and new York civil liberties Union. [email protected] 160 | Ethics AbAndonEd Task Force Members | 161 robErt s. lAWrEncE, Md dEborAh AlEJAndrA PoPoWksi, Jd Center for a Livable Future Lecturer on Law and Clinical Instructor, Harvard Law School Professor in Environmental Health Sciences and Professor of Health deborah Alejandra Popowski, Jd, is a lecturer on law and a clinical instructor Policy and International Health, Johns Hopkins Bloomberg School of Public Health at harvard law school, where she teaches courses that examine the impact of robert s. lawrence, Md, is the center for a livable Future Professor in the U.s. counterterrorism policy and operations and serves as Project coordinator department of Environmental health sciences at the Johns hopkins bloomberg of the Program for Medical Professionals, human rights, and humanitarian school of Public health. dr. lawrence graduated from harvard Medical school law. Prior to her harvard appointment, she was a skirball Fellow at the center and trained at Massachusetts general hospital. A founding director of for constitutional rights. Popowski has worked since 2008 to end the involve- Physicians for human rights, he has investigated human rights abuses in chile, ment of U.s. health professionals in torture through supporting legislation to czechoslovakia, Egypt, El salvador, guatemala, the Philippines, south Africa, reform state health professional codes, filing complaints before state licensing and kosovo. boards, creating a public education website, and providing support for detainees and U.s. service members and veterans who suffered medical and other health- related abuse. she is co-counsel in Bond et al. v. Ohio State Psychology Board, a stEPhEn h. MilEs, Md suit seeking to compel that board to investigate a professional misconduct com- Professor of Medicine and Maas Family Foundation Chair in Bioethics, plaint filed by four ohio residents against col. (ret.) larry James, former senior University of Minnesota intelligence psychologist at guantánamo. steven h. Miles, Md, is Professor of Medicine and Maas Family Foundation chair in bioethics at the University of Minnesota. he studies physician com- plicity with torture and war crimes and is currently addressing the increasing stEPhEn rEisnEr, Phd international movement to hold physicians accountable for this kind of crimi- steven reisner, Phd, is a practicing psychoanalyst and couples therapist in new nal or professional misconduct. he has also written on U.s. physicians’ human York. he is a founding member of the coalition for an Ethical Psychology, a rights misconduct during the war on terror. he wrote Oath Betrayed: America’s group dedicated to upholding international standards of human rights in psycho- Torture Doctors. he maintains an online archive of 50,000 U.s. documents logical practice and research and supporting psychologists who work to combat recording the policies and misconduct of war-on-terror physicians. the effects of political violence and internationally. dr. reisner is advisor on psychology and ethics for Physicians for human rights. With Physicians for human rights and the coalition, dr. reisner has been working to ArYEh nEiEr change the policy of the American Psychological Association supporting psychol- President Emeritus, Open Society Foundations ogists’ participation in coercive or abusive military/intelligence interrogations at places like guantánamo, bagram, and ciA “black sites.” because of this work, dr. Aryeh neier is President Emeritus of the open society Foundations, having reisner was the recipient of the new York state Psychological Association’s served as President from 1993 to 2012. Previously, he was Executive director beacon Award. in addition, dr. reisner has been a consultant on trauma and of ; before that, he was Executive director of the resilience in the face of catastrophic events for the United nations, the American civil liberties Union. his most recent book is The International international criminal court, the international organization for Migrations, Human Rights Movement: A History (2012). he was distinguished visiting and other international humanitarian organizations. Professor at sciences Po (Paris) in 2012. 162 | Ethics AbAndonEd Task Force Members | 163 hErnán rEYEs, Md, FMh ob/gYn lEonArd s. rUbEnstEin, Jd born in1951 in chile, hernán reyes grew up in new York and then moved to Director of the Program on Human Rights, Health, and Conflict, Center for Public geneva, where he graduated from medical school. A trained ob/gyn with a doc- Health and Human Rights, Johns Hopkins Bloomberg School of Public Health torate in medicine from geneva University, he worked for 28 years as medical leonard s. rubenstein is senior scholar and director of the Program on human coordinator for the international committee of the red cross, specializing in rights, health, and conflict at the center for Public health and human rights medical and ethical aspects of human rights, prison health, and in the field of at the Johns hopkins bloomberg school of Public health. he previously served multi-drug-resistant tuberculosis (Mdr tb) in prisons. he has vast field expe- as Executive director and then President of Physicians for human rights and as rience, having worked in well over 50 countries. he has numerous publications a Jennings randolph senior Fellow at the United states institute for Peace. his on these issues and recognized expertise in the documentation of torture, man- current teaching includes a course on human rights for the public health pro- agement of hunger strikes, and other areas. fessional. Mr. rubenstein has written and lectured extensively on health profes- sionals and human rights as well as conducted field investigations in kosovo, chechnya, israel and the occupied territories, south Africa, cameroon, and dAvid J. rothMAn, Phd elsewhere. he co-chaired the international dual loyalty Working group, which President, Institute on Medicine as a Profession produced the report “dual loyalty and human rights in health Professional Bernard Schoenberg Professor of Social Medicine, Practice: guidelines and institutional Mechanisms,” and has written reports, Columbia College of Physicians & Surgeons book chapters, and articles for professional journals and op-eds in the david J. rothman is President of the institute on Medicine as a Profession Washington Post and New York Times on the role of health professionals in U.s. (iMAP) and bernard schoenberg Professor of social Medicine at columbia interrogation of detainees held at guantánamo and elsewhere. Mr. rubenstein college of Physicians & surgeons. trained in American social history, he first is the recipient of many awards, including the sidel-levy Award for Peace of the American Public health Association. explored the history of mental hospitals and prisons. his book The Discovery of the Asylum (1973) was co-winner of the American historical Association beveridge Prize. david rothman joined the columbia college of Physicians and surgeons in 1983 and subsequently examined the history of health care prac- tices and policies. his books include Strangers at the Bedside and The Pursuit of Perfection (2003, with sheila rothman). With sheila rothman, he has addressed human rights in medicine, including trafficking in organs, how Aids came to infect romanian orphans, and research ethics in third-world countries. rothman is now advancing the role of professionalism in medicine. he has co- chaired two policy task forces, whose recommendations were published as “health industry Practices that create conflicts of interest (JAMA, 2006) and “Professional Medical Associations and their relationships with industry” (JAMA, 2009). 164 | Ethics AbAndonEd Task Force Members | 165 stEvEn s. shArFstEin, Md, MPA AlbErt J. shiMkUs, Jr. President and CEO, Sheppard Pratt Health System, Baltimore, MD Associate Professor, National Security Affairs, Naval War College Former President, American Psychiatric Association Professor Albert J. shimkus, Jr., joined the national security Affairs faculty in steven s. sharfstein is President and chief Executive officer of the sheppard december 2006 and was appointed course director for the Policy Making and Pratt health system, where he has worked for 25 years. he is also clinical Process and contemporary staff Environment courses in May 2007. he now Professor and vice chair of Psychiatry at the University of Maryland. A practic- teaches in the leadership sub-courses. he enlisted in the U.s. Air Force in 1965 ing clinician for more than 35 years, he is best known for his research and writ- and completed a tour of duty at bien hoa Air base, south vietnam, in 1967 and ing on the economics of practice and public mental health policy. over a period 1968. he graduated from george Washington University in 1981 with a bachelor of 13 years, he held a variety of positions at the national institute of Mental of science in nurse Anesthesia degree and practiced as a nurse anesthetist health, including director of Mental health service Programs, as well as posi- (crnA) for over 25 years with numerous tours in support of deployed forces. he tions in consultation/liaison psychiatry and research in behavioral medicine on earned a Master of Arts degree in national security and strategic studies from the campus of the national institutes of health. he has written on a wide vari- the naval War college in 1993. he had numerous leadership tours while on ety of clinical and economic topics and has published more than 140 profession- active duty, including Executive officer, U.s. naval hospital, naples, italy; al papers, 40 book chapters, and 10 books, including (as co-author) Madness and commanding officer, U.s. naval hospital, guantánamo bay, , and Joint Government: Who Cares for the Mentally Ill?, a history of the federal community task Force surgeon, JtF gtMo; navy Medicine’s team leader for brAc 2005; mental health centers program. More recently, he was chief editor of Textbook deputy commandant, naval district Washington; and commanding officer, of Hospital Psychiatry. A graduate of dartmouth college and the Albert Einstein medical treatment facility Usns coMFort. shimkus taught in the naval War college of Medicine, he trained in psychiatry at the Massachusetts Mental college’s national security decision Making department for two years as a mil- health center in boston from 1969 to 1972. dr. sharfstein also received a itary faculty member and in the college of distance Education for six years. he Master in Public Administration degree from the kennedy school of retired from the U.s. navy as a captain (06) in 2007 after a 39-year career. government in 1973 and a certificate from the Advanced Management Program at the harvard business school in 1991. he was secretary of the American Psychiatric Association from 1991 to 1995, its vice President from 2002 to Eric stovEr 2004, and President from 2005 to 2006. dr. sharfstein also received the human Adjunct Professor of Law and Director of the Human Rights Center, rights Award from the American Psychiatric Association in 2007. University of California, Berkeley Eric stover is Faculty director of the human rights center and Adjunct Professor of law at the University of california, berkeley. his research on the medical and social consequences of landmines helped launch the international campaign to ban land Mines, which received the nobel Prize in 1997. his most recent books include The Guántanamo Effect: Exposing the Consequences of U.S. Interrogation and Detention Practices (with laurel Fletcher) and The Witnesses: War Crimes and the Promise of Justice in The Hague. 166 | Ethics AbAndonEd Task Force Members | 167 gErAld E. thoMson, Md brigAdiEr gEnErAl (rEt.) stEPhEn n. xEnAkis, Md Lambert and Sonneborn Professor of Medicine Emeritus and former dr. xenakis served 28 years in the United states Army as a medical corps offi- Senior Associate Dean, ColumbiaUniversity College of Physicians and Surgeons cer. he held a wide variety of assignments as a clinical psychiatrist, staff officer, dr. thomson was previously Executive vice President for Professional Affairs and senior commander, including commanding general of the southeast Army and chief of staff at the columbia-Presbyterian Medical center, and director of regional Medical command. dr. xenakis has written widely on medical ethics, Medicine at harlem hospital center. he has served on numerous national military medicine, and the treatment of detainees. he has published editorials institutes of health committees on hypertension, cardiovascular disease, and in the New York Times, Washington Post, and a number of other national maga- clinical trials. he was chairman of the board of directors of the institute on zines and journals. he has also published book chapters and legal reviews. dr. Medicine as a Profession from 2003 to 2011. dr. thomson is a member of the xenakis has an active clinical and consulting practice and currently is working institute of Medicine of the national Academies (ioM) and was chairman of a on the clinical applications of quantitative electroencephalography (QEEg) to 2004 ioM committee that reviewed and reported on the health disparities brain injury and other neurobehavioral conditions. research Plan of the national institutes of health. he served as a member of the constitution Project task Force on detainee treatment, which presented its report in April 2013. he is also a former chairman of the American board of internal Medicine and Past President of the American college of Physicians.

FrEdErick E. tUrton, Md, MbA, MAcP Assistant Professor of Medicine, Emory University School of Medicine dr. turton attended medical school at Emory University and trained in internal medicine at . he has a Master of business Administration degree from the University of south Florida. he has practiced in a variety of set- tings, including community-based private practice, university-based teaching hos- pital, the national health service corps, and primary care in an academic med- ical center. he has been involved in hospital leadership in a variety of roles, for- mation of a large medical group, independent practice associations, health insur- ance companies, and professional liability companies. Additionally, he has exten- sive experience in professional medical associations, especially the American college of Physicians, where he was chair of the Professionalism and human rights committee and chair of the board of regents. currently he is Medical director of general internal Medicine at Emory University hospital Midtown and Assistant Professor of Medicine at Emory University school of Medicine. APPEndix 1

Appendix 1: Istanbul Protocol Guidelines for Medical Evaluations of Torture and Cruel, Inhuman or Degrading Treatment, Annex 4

i. cAsE inForMAtion date of Exam: ______Exam. requested by (name/Position): ______case id/report #: ______duration of Evaluation: ______hours ______Minutes ______subject’s given name: ______birth date: _____ birth Place: _____ subject’s Family name: ______gender: Female/Male reason for Exam: ______subject’s id#: ______clinician’s name: ______interpreter: Yes/no name: ______informed consent: Yes/no – if “no,” Provide reason: ______subject Accompanied by (name/Position): ______Person(s) Present during Examination (name/Position):______subject restrained during Exam: Yes/no – if “Yes,” how/Why Medical report transferred to (name/Position/id#):______transfer date:______transfer time:______Medical Evaluation/investigation conducted without restriction (For subjects in custody): Yes/no Provide details of Any restrictions: ______170 | Ethics AbAndonEd Appendix 1 | 171 ii. cliniciAn’s QUAliFicAtions (For Judicial Testimonies) (chronology, transportation, and detention conditions) 1. Medical Education and clinical training 4. narrative Account of cruel, inhuman or degrading treatment of torture (in each place of detention) 2. Psychological/Psychiatric training 5. review of torture Methods 3. Experience in documenting Evidence of torture and cruel, inhuman or degrading treatment 4. regional human rights Expertise relevant to the investigation vi. PhYsicAl sYMPtoMs And disAbilitiEs 5. relevant Publications, Presentations and training courses describe the development of acute and chronic symptoms and disabilities and the subsequent healing processes. 6. Provide curriculum vitae 1. Acute symptoms and disabilities iii. stAtEMEnt rEgArding vErAcitY oF tEstiMonY 2. chronic symptoms and disabilities (For Judicial Testimonies) For example: “i personally know the facts recited below, except as to those stated on information and belief, which i believe to be true. i would be vii. PhYsicAl ExAMinAtion prepared to testify to the above statements based on my personal knowledge 1. general Appearance and belief.” 2. skin 3. Face/head iv. bAckgroUnd inForMAtion 4. Eyes/Ears/nose/throat 1. general information (age, occupation, education, family composition, etc.) 5. oral cavity/teeth 2. Past Medical history 6. chest/Abdomen (including vital signs) 3. review of Prior Medical Evaluations of torture and cruel, 8. Musculoskeletal system inhuman or degrading treatment 9. nervous system (central and Peripheral) 4. Psychosocial history Pre-Arrest

viii. PsYchologicAl historY/ExAMinAtion v. AllEgAtions oF tortUrE 1. Methods of Assessment And crUEl, inhUMAn or dEgrAding trEAtMEnt 2. current Psychological complaints 1. summary of detention(s) and Abuse 4. Pre-torture history 2. circumstances of Arrest and detention 5. Past Psychological/Psychiatric history 3. initial and subsequent Places of detention 172 | Ethics AbAndonEd Appendix 1 | 173

6. substance Use and Abuse history c. indicate the status of the individual in the fluctuating course of trauma-related mental disorders over time; i.e., what is the time 7. Mental status Examination frame in relation to the torture events and where in the course of 8. Assessment of social Functioning recovery is the individual. 9. [Psychological testing] d. identify any coexisting stressors impinging on the individual (e.g., ongoing , forced migration, exile, loss of family and social 10. [neuropsychological] role, etc.) and the impact these may have on the individual. E. Mention physical conditions that may contribute to the clinical ix. PhotogrAPhs picture, especially with regard to possible evidence of head injury sustained during torture and/or detention. x. diAgnostic tEst rEsUlts xiii. conclUsions And rEcoMMEndAtions 1. statement of opinion on the consistency between all sources of evidence xi. consUltAtions cited above (physical and psychological findings, historical information, photographic findings, diagnostic test results, knowledge of regional practices of torture, consultation reports, etc.) and allegations of torture xii. intErPrEtAtion oF Findings and cruel, inhuman or degrading treatment. 1. Physical Evidence: 2. reiterate the symptoms and/or disabilities that the individual continues A. correlate the degree of consistency between the history of acute and to suffer as a result of the alleged abuse. chronic physical symptoms and disabilities with allegations of abuse. 3. Provide any recommendations for further evaluation and/or care for b. correlate the degree of consistency between physical examination the individual. findings and allegations of abuse. (note: the absence of physical findings does not exclude the possibility that torture or cruel, inhuman or degrading treatment was inflicted.) xiv. stAtEMEnt oF trUthFUlnEss (For Judicial Testimonies) c. correlate the degree of consistency between examination findings of For example, “i declare under penalty of perjury, pursuant to the laws of the individual with knowledge of torture methods and their common (xx country), that the foregoing is true and correct and that this affidavit after-effects used in a particular region. was executed on x/x/x at (city), (state or Province).” 2. Psychological Evidence: A. correlate the degree of consistency between the psychological xv. stAtEMEnt oF rEstrictions on thE MEdicAl findings and the alleged report of torture.A. EvAlUAtion/invEstigAtion (For Subjects in Custody) b. Provide an assessment of whether the psychological findings are For example, “the undersigned clinician(s) personally certify that they expected or typical reactions to extreme stress within the cultural and were allowed to work freely and independently, and permitted to speak with social context of the individual. and examine (the subject) in private, without any restriction or reservation, 174 | Ethics AbAndonEd APPEndix 2

and without any form of coercion being used by the detaining authorities;” Appendix 2: World Medical Association Declaration or alternatively: “the undersigned clinician(s) had to carry out his/her/their evaluation/investigation with the following restrictions:...” of Malta on Hunger Strikers (revised 2006) clinician’s signature, date, Place xvii. rElEvAnt APPEndicEs e.g. clinician’s curriculum vitae, Anatomical drawings for identification of torture and cruel, inhuman or degrading treatment, Photographs, consultations, and diagnostic test results, among others. PrEAMblE 1. hunger strikes occur in various contexts but they mainly give rise to dilemmas in settings where people are detained (prisons, jails and immigration detention centres). they are often a form of protest by people who lack other ways of making their demands known. in refusing nutrition for a significant period, they usually hope to obtain certain goals by inflicting negative publicity on the authorities. short-term or feigned food refusals rarely raise ethical problems. genuine and prolonged fasting risks death or permanent damage for hunger strikers and can create a conflict of values for physicians. hunger strikers usually do not wish to die but some may be prepared to do so to achieve their aims. Physicians need to ascertain the individual’s true intention, especially in collective strikes or situations where peer pressure may be a factor. An ethical dilemma arises when hunger strikers who have apparently issued clear instructions not to be resuscitated reach a stage of cognitive impairment. the principle of beneficence urges physicians to resuscitate them but respect for individual autonomy restrains physicians from intervening when a valid and informed refusal has been made. An added difficulty arises in custodial settings because it is not always clear whether the hunger striker’s advance instructions were made voluntarily and with appropriate information about the consequences. these guidelines and the background paper address such difficult situations.

PrinciPlEs 2. duty to act ethically. All physicians are bound by medical ethics in their professional contact with vulnerable people, even when not providing therapy. Whatever their role, physicians must try to prevent coercion or maltreatment of detainees and must protest if it occurs. 176 | Ethics AbAndonEd Appendix 2 | 177

3. respect for autonomy. Physicians should respect individuals’ gaining trust can create opportunities to resolve difficult autonomy. this can involve difficult assessments as hunger strikers’ situations. trust is dependent upon physicians providing accurate true wishes may not be as clear as they appear. Any decisions lack advice and being frank with hunger strikers about the limitations moral force if made involuntarily by use of threats, peer pressure or of what they can and cannot do, including where they cannot coercion. hunger strikers should not be forcibly given treatment guarantee confidentiality. they refuse. Forced feeding contrary to an informed and voluntary refusal is unjustifiable. Artificial feeding with the hunger striker’s explicit or implied consent is ethically acceptable. gUidElinEs For thE MAnAgEMEnt 4. ‘benefit’ and ‘harm’. Physicians must exercise their skills and oF hUngEr strikErs knowledge to benefit those they treat. this is the concept of 9. Physicians must assess individuals’ mental capacity. this involves ‘beneficence’, which is complemented by that of ‘non-maleficence’ verifying that an individual intending to fast does not have a mental or primum non nocere. these two concepts need to be in balance. impairment that would seriously undermine the person’s ability to ‘benefit’ includes respecting individuals’ wishes as well as make health care decisions. individuals with seriously impaired promoting their welfare. Avoiding ‘harm’ means not only mental capacity cannot be considered to be hunger strikers. they minimising damage to health but also not forcing treatment upon need to be given treatment for their mental health problems rather competent people nor coercing them to stop fasting. beneficence than allowed to fast in a manner that risks their health. does not necessarily involve prolonging life at all costs, irrespective of other values. 10. As early as possible, physicians should acquire a detailed and accurate medical history of the person who is intending to fast. the 5. balancing dual loyalties. Physicians attending hunger strikers can medical implications of any existing conditions should be explained experience a conflict between their loyalty to the employing to the individual. Physicians should verify that hunger strikers authority (such as prison management) and their loyalty to patients. understand the potential health consequences of fasting and Physicians with dual loyalties are bound by the same ethical forewarn them in plain language of the disadvantages. Physicians principles as other physicians, that is to say that their primary should also explain how damage to health can be minimised or obligation is to the individual patient. delayed by, for example, increasing fluid intake. since the person’s 6. clinical independence. Physicians must remain objective in their decisions regarding a hunger strike can be momentous, ensuring full assessments and not allow third parties to influence their medical patient understanding of the medical consequences of fasting is judgment. they must not allow themselves to be pressured to breach critical. consistent with best practices for informed consent in ethical principles, such as intervening medically for non-clinical health care, the physician should ensure that the patient understands reasons. the information conveyed by asking the patient to repeat back what they understand. 7. confidentiality. the duty of confidentiality is important in building trust but it is not absolute. it can be overridden if non-disclosure 11. A thorough examination of the hunger striker should be made at the seriously harms others. As with other patients, hunger strikers’ start of the fast. Management of future symptoms, including those confidentiality should be respected unless they agree to disclosure or unconnected to the fast, should be discussed with hunger strikers. unless information sharing is necessary to prevent serious harm. if Also, the person’s values and wishes regarding medical treatment in individuals agree, their relatives and legal advisers should be kept the event of a prolonged fast should be noted. informed of the situation. 12. sometimes hunger strikers accept an intravenous saline solution 8. gaining trust. Fostering trust between physicians and hunger transfusion or other forms of medical treatment. A refusal to accept strikers is often the key to achieving a resolution that both respects certain interventions must not any other aspect of the the rights of the hunger strikers and minimises harm to them. medical care, such as treatment of infections or of pain. 178 | Ethics AbAndonEd Appendix 2 | 179

13. Physicians should talk to hunger strikers in privacy and out of earshot previously expressed wishes, their personal and cultural values as of all other people, including other detainees. clear communication well as their physical health. in the absence of any evidence of hunger is essential and, where necessary, interpreters unconnected to the strikers’ former wishes, physicians should decide whether or not to detaining authorities should be available and they too must respect provide feeding, without interference from third parties. confidentiality. 19. Physicians may consider it justifiable to go against advance 14. Physicians need to satisfy themselves that food or treatment refusal is instructions refusing treatment because, for example, the refusal is the individual’s voluntary choice. hunger strikers should be protected thought to have been made under duress. if, after resuscitation and from coercion. Physicians can often help to achieve this and should having regained their mental faculties, hunger strikers continue to be aware that coercion may come from the peer group, the authorities reiterate their intention to fast, that decision should be respected. or others, such as family members. Physicians or other health care it is ethical to allow a determined hunger striker to die in dignity personnel may not apply undue pressure of any sort on the hunger rather than submit that person to repeated interventions against his striker to suspend the strike. treatment or care of the hunger striker or her will. must not be conditional upon suspension of the hunger strike. 20. Artificial feeding can be ethically appropriate if competent hunger 15. if a physician is unable for reasons of conscience to abide by a strikers agree to it. it can also be acceptable if incompetent individuals hunger striker’s refusal of treatment or artificial feeding, the have left no unpressured advance instructions refusing it. physician should make this clear at the outset and refer the hunger 21. Forcible feeding is never ethically acceptable. Even if intended to striker to another physician who is willing to abide by the hunger benefit, feeding accompanied by threats, coercion, force or use of striker’s refusal. physical restraints is a form of inhuman and degrading treatment. 16. continuing communication between physician and hunger strikers Equally unacceptable is the forced feeding of some detainees in is critical. Physicians should ascertain on a daily basis whether order to intimidate or coerce other hunger strikers to stop fasting. individuals wish to continue a hunger strike and what they want to be done when they are no longer able to communicate meaningfully. these findings must be appropriately recorded. 17. When a physician takes over the case, the hunger striker may have already lost mental capacity so that there is no opportunity to discuss the individual’s wishes regarding medical intervention to preserve life. consideration needs to be given to any advance instructions made by the hunger striker. Advance refusals of treatment demand respect if they reflect the voluntary wish of the individual when competent. in custodial settings, the possibility of advance instructions having been made under pressure needs to be considered. Where physicians have serious doubts about the individual’s intention, any instructions must be treated with great caution. if well-informed and voluntarily made, however, advance instructions can only generally be overridden if they become invalid because the situation in which the decision was made has changed radically since the individual lost competence. 18. if no discussion with the individual is possible and no advance instructions exist, physicians have to act in what they judge to be the person’s best interests. this means considering the hunger strikers’ APPEndix 3

Appendix 3: Ethics Statements and Opinions of Professional Associations on Interrogation and Torture

World Medical Association Declaration of Tokyo – Guidelines for Physicians Concerning Torture and other Cruel, Inhuman orDegrading Treatment or Punishment in Relation to Detention and Imprisonment (1975, revised 2005 and 2006)

PrEAMblE it is the privilege of the physician to practice medicine in the service of human- ity, to preserve and restore bodily and mental health without distinction as to persons, to comfort and to ease the suffering of his or her patients. the utmost respect for human life is to be maintained even under threat, and no use made of any medical knowledge contrary to the laws of humanity. For the purpose of this declaration, torture is defined as the deliberate, systematic or wanton infliction of physical or mental or mental suffering by one or more persons act- ing alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason. dEclArAtion 1. the physician shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offense of which the victim of such procedures is suspected, accused or guilty, and whatever the victim’s beliefs or motives, and in all situations, including armed conflict and civil strife. 2. the physician shall not provide any premises, instruments, substances or knowledge to facilitate the practice of torture or other forms of cruel, inhuman or degrading treatment or to diminish the ability of the victim to resist such treatment. 182 | Ethics AbAndonEd Appendix 3 | 183

3. When providing medical assistance to detainees or prisoners who are, or reason. Participation in torture includes, but is not limited to, providing or who could later be, under interrogation, physicians should be particularly withholding any services, substances, or knowledge to facilitate the practice of careful to ensure the confidentiality of all personal medical information. torture. Physicians must not be present when torture is used or threatened. A breach of the geneva conventions shall in any case be reported by the Physicians may treat prisoners or detainees if doing so is in their interest, but physician to relevant authorities. the physician shall not use nor allow physicians should not treat individuals to verify their health so that torture can to be used, as far as he or she can, medical knowledge or skills, or health begin or continue. Physicians who treat torture victims should not be persecut- information specific to individuals, to facilitate or otherwise aid any ed. Physicians should help provide support for victims of torture and, whenever interrogation, legal or illegal, of those individuals. possible, strive to change situations in which torture is practiced or the poten- tial for torture is great. 4. the physician shall not be present during any procedure during which torture or any other form of cruel, inhuman or degrading treatment is Physician Participation used or threatened. in Interrogation (November 2006) 5. A physician must have complete clinical independence in deciding interrogation is defined as questioning related to law enforcement or to military upon the care of a person for whom he or she is medically responsible. and national security intelligence gathering, designed to prevent harm or danger the physician’s fundamental role is to alleviate the distress of his or her to individuals, the public, or national security. interrogations are distinct from fellow human beings, and no motive, whether personal, collective or questioning used by physicians to assess the physical or mental condition of an political, shall prevail against this higher purpose. individual. to be appropriate, interrogations must avoid the use of coercion—that 6. Where a prisoner refuses nourishment and is considered by the physician is, threatening or causing harm through physical injury or mental suffering. in as capable of forming an unimpaired and rational judgment concerning this opinion, “detainee” is defined as a criminal suspect, prisoner of war, or any the consequences of such a voluntary refusal of nourishment, he or she other individual who is being held involuntarily. Physicians who engage in any shall not be fed artificially. the decision as to the capacity of the prisoner activity that relies on their medical knowledge and skills must continue to uphold to form such a judgment should be confirmed by at least one other principles of medical ethics. Questions about the propriety of physician participa- independent physician. the consequences of the refusal of nourishment tion in interrogations and in the development of interrogation strategies may be shall be explained by the physician to the prisoner. addressed by balancing obligations to individuals with obligations to protect third parties and the public. the further removed the physician is from direct involve- 7. the World Medical Association will support, and should encourage the ment with a detainee, the more justifiable is a role serving the public interest. international community, the national Medical Associations and fellow Applying this general approach, physician involvement with interrogation during physicians to support, the physician and his or her family in the face of law enforcement or intelligence gathering should be guided by the following: threats or reprisals resulting from a refusal to condone the use of torture or other forms of cruel, inhuman or degrading treatment. 1. Physicians may perform physical and mental assessments of detainees to determine the need for and to provide medical care. When so doing, physicians must disclose to the detainee the extent to which others have American Medical Association access to information included in medical records. treatment must never be conditional on a patient’s participation in an interrogation. Code of Medical Ethics, Opinion 2.067 - Torture (December 1999) 2. Physicians must neither conduct nor directly participate in an interrogation, because a role as physician-interrogator undermines the torture refers to the deliberate, systematic, or wanton administration of cruel, physician’s role as healer and thereby erodes trust in the individual inhuman, and degrading treatments or punishments during imprisonment or physician-interrogator and in the medical profession. detainment. Physicians must oppose and must not participate in torture for any 184 | Ethics AbAndonEd Appendix 3 | 185

3. Physicians must not monitor interrogations with the intention of American Psychiatric Association intervening in the process, because this constitutes direct participation Position Statement in the interrogation. on Human Rights (December 1992) 4. Physicians may participate in developing effective interrogation strategies the American Psychiatric Association is concerned about the psychiatric conse- for general training purposes. these strategies must not threaten or cause quences of human rights violations—violations such as unjust incarceration and physical injury or mental suffering and must be humane and respect the cruel or unusual punishment, including terror and torture. the World rights of individuals. Psychiatric Association goals include: to educate psychiatrists and other profes- 5. When physicians have reason to believe that interrogations are sionals about human rights abuses and the persecution of physicians who speak coercive, they must report their observations to the appropriate out against the use of torture and for the rehabilitation of torture victims; to authorities. if authorities are aware of coercive interrogations but have promote research on the effects of human rights violations; and to prevent not intervened, physicians are ethically obligated to report the offenses human rights violations. to independent authorities that have the power to investigate or adjudicate such allegations. Psychiatric Participation in Interrogation of Detainees (May 2006)

American College of Physicians 1. the American Psychiatric Association reiterates its position that Ethics Statement psychiatrists should not participate in, or otherwise assist or facilitate, on Physicians and Torture (2008) the commission of torture of any person. Psychiatrists who become aware that torture has occurred, is occurring, or has been planned must • Physicians must not be party to and must speak out against torture or report it promptly to a person or persons to take corrective action. other abuses of human rights. 2. a) Every person in military or civilian detention, whether in the United • Participation by physicians in the execution of prisoners except to certify states or elsewhere, is entitled to appropriate medical care under death is unethical. domestic and international humanitarian law. b) Psychiatrists providing medical care to individual detainees owe their primary obligation to the • Under no circumstances is it ethical for a physician to be used as an well-being of their patients, including advocating for their patients, and instrument of government to weaken the physical or mental resistance of should not participate or assist in any way, whether directly or indirectly, a human being, nor should a physician participate in or tolerate cruel or overtly or covertly, in the interrogation of their patients on behalf of unusual punishment or disciplinary activities beyond those permitted by the military or civilian agencies or law enforcement authorities. c) United nations standard Minimum rules for the treatment of Prisoners. Psychiatrists should not disclose any part of the medical records of any patient, or information derived from the treatment relationship, to • Physicians must not conduct, participate in, monitor, or be present at persons conducting interrogation of the detainee. d) this paragraph is interrogations, or participate in developing or evaluating interrogation not meant to preclude treating psychiatrists who become aware that the strategies or techniques. detainee may pose a significant threat of harm to him/herself or to others from ascertaining the nature and the seriousness of the threat or • A physician who becomes aware of abusive or coercive practices has a from notifying appropriate authorities of that threat, consistent with the duty to report those practices to the appropriate authorities and advocate obligations applicable to other treatment relationships. for necessary medical care. 3. no psychiatrist should participate directly in the interrogation of persons • Exploiting, sharing, or using medical information from any source for held in custody by military or civilian investigative or law enforcement interrogation purposes is unethical. authorities, whether in the United states or elsewhere. direct 186 | Ethics AbAndonEd Appendix 3 | 187

participation includes being present in the interrogation room, asking 1985 Joint resolution Against torture of the American Psychological or suggesting questions, or advising authorities on the use of specific Association and the American Psychiatric Association. (Principle A, techniques of interrogation with particular detainees. however, beneficence and nonmaleficence, and Ethical standard 3.04, Avoiding psychiatrists may provide training to military or civilian investigative or harm) the task Force emphasizes that the board of directors’ charge law enforcement personnel on recognizing and responding to persons did not include an investigative or adjudicatory role and so the task with mental illnesses, on the possible medical and psychological effects Force does not render any judgment concerning events that may or may of particular techniques and conditions of interrogation, and on other not have occurred in national security-related settings. the task Force areas within their professional expertise. nonetheless feels that an absolute statement against torture and other cruel, inhuman, or degrading treatment is appropriate. American Psychological Association 2. Psychologists are alert to acts of torture and other cruel, inhuman, American Psychological Association or degrading treatment and have an ethical responsibility to report Opposition to Torture (1986) these acts to the appropriate authorities. this ethical responsibility is WhErEAs the American psychologists are bound by the Ethical Principles rooted in the Preamble, “Psychologists respect and protect civil and to “respect the dignity and worth of the individual and strive for the preserva- human rights…the development of a dynamic set of ethical standards tion and protection of fundamental human rights and; for psychologists’ work-related conduct requires a personal commitment WhErEAs the existence of state-sponsored torture and other cruel, inhu- and lifelong effort to act ethically [and] to encourage ethical behavior man, or degrading treatment has been documented in many nations around the by…colleagues,” and Principle b, Fidelity and responsibility, which world and; states that psychologists “are concerned about the ethical compliance of WhErEAs psychological knowledge and techniques may be used to design their colleagues’ scientific and professional conduct.” (Ethical standard and carry out torture and; 1.05, reporting Ethical violations) the task Force notes that when WhErEAs torture victims may suffer from long-term, multiple psychologi- fulfilling the obligation to respond to unethical behavior by reporting the cal and physical problems, behavior to appropriate authorities as a prelude to an adjudicatory bE it rEsolvEd that the American Psychological Association condemns process, psychologists guard against the names of individual torture wherever it occurs, and psychologists being disseminated to the public. inappropriate or bE it FUrthEr rEsolvEd that the American Psychological Association premature public dissemination can expose psychologists to a risk of supports the U.n. declaration and convention against torture and other cruel, harm outside of established and appropriate legal and adjudicatory inhuman, or degrading treatment or Punishment and the U.n. Principles of processes. (Ethical standard 3.04, Avoiding harm) Medical Ethics, as well as the joint congressional resolution opposing torture 3. Psychologists who serve in the role of supporting an interrogation that was signed into law by President reagan on october 4, 1984. do not use health care–related information from an individual’s medical record to the detriment of the individual’s safety and well- Recommendations of the American Psychological Association being. While information from a medical record may be helpful or Task Force on Psychological Ethics and National Security, necessary to ensure that an interrogation process remains safe, adopted by Council of Representative (2006, footnotes omitted) psychologists do not use such information to the detriment of an individual’s safety and well-being. (Ethical standards 3.04, Avoiding 1. Psychologists do not engage in, direct, support, facilitate, or offer harm, and 3.08, Exploitative relationships) training in torture or other cruel, inhuman, or degrading treatment. the task Force endorses the 1986 resolution Against torture of the 4. Psychologists do not engage in behaviors that violate the laws of the American Psychological Association council of representatives, and the United States, although psychologists may refuse for ethical reasons 188 | Ethics AbAndonEd Appendix 3 | 189

to follow laws or orders that are unjust or that violate basic other Professionals) regardless of their role, psychologists who are principles of human rights. Psychologists involved in national security– aware of an individual in need of health or mental health treatment may related activities follow all applicable rules and regulations that govern seek consultation regarding how to ensure that the individual receives their roles. over the course of the recent United states military presence needed care. (Principle A, beneficence and nonmaleficence) in locations such as Afghanistan, iraq, and cuba, such rules and 6. Psychologists are sensitive to the problems inherent in mixing regulations have been significantly developed and refined. Psychologists potentially inconsistent roles such as health care provider and have an ethical responsibility to be informed of, familiar with, and follow consultant to an interrogation, and refrain from engaging in such the most recent applicable regulations and rules. the task Force notes multiple relationships. (Ethical standard 3.05, Multiple relationships, that certain rules and regulations incorporate texts that are fundamental “A psychologist refrains from entering into a multiple relationship if the to the treatment of individuals whose liberty has been curtailed, such as multiple relationship could reasonably be expected to impair the the United nations convention Against torture and other cruel, psychologist’s objectivity, competence, or effectiveness in performing his inhuman, or degrading treatment or Punishment and the geneva or her functions as a psychologist, or otherwise risks exploitation or convention relative to the treatment of Prisoners of War. the task harm to the person with whom the professional relationship exists.”) Force notes that psychologists sometimes encounter conflicts between ethics and law. When such conflicts arise, psychologists make known 7. Psychologists may serve in various national security–related roles, their commitment to the APA Ethics code and attempt to resolve the such as a consultant to an interrogation, in a manner that is conflict in a responsible manner. if the conflict cannot be resolved in consistent with the Ethics Code, and when doing so psychologists this manner, psychologists may adhere to the requirements of the law. are mindful of factors unique to these roles and contexts that require (Ethical standard 1.02) An ethical reason for psychologists to not follow special ethical consideration. the task Force noted that psychologists the law is to act “in keeping with basic principles of human rights.” (APA have served in consultant roles to law enforcement on the state and Ethics code, introduction and Applicability) the task Force encourages federal levels for a considerable period of time. Psychologists have psychologists working in this area to review essential human rights proven highly effective in lending assistance to law enforcement in documents, such as the United nations convention Against torture and the vital area of information gathering and have done so in an ethical other cruel, inhuman, or degrading treatment or Punishment and the manner. the task Force noted special ethical considerations for geneva convention relative to the treatment of Prisoners of War. psychologists serving as consultants to interrogation processes in national security–related settings, especially when individuals from 5. Psychologists are aware of and clarify their role in situations where countries other than the United states have been detained by United the nature of their professional identity and professional function states authorities. such ethical considerations include: may be ambiguous.Psychologists have a special responsibility to clarify their role in situations where individuals may have an incorrect 1. how certain settings may instill in individuals a profound sense of impression that psychologists are serving in a health care provider role. powerlessness and may place individuals in considerable positions of (Ethical standards 3.07, third-Party requests for services, and 3.11, disadvantage in terms of asserting their interests and rights. (Ethical Psychological services delivered to or through organizations). the task standards 1.01, Misuse of Psychologists’ Work, and 3.08, Exploitative Force noted that psychologists acting in the role of consultant to national relationships) security issues most often work closely with other professionals from 2. how failures to understand aspects of individuals’ culture and various disciplines. As a consequence, psychologists rarely act alone or ethnicity may generate misunderstandings, compromise the efficacy independently, but rather as part of a group of professionals who bring and hence the safety of investigatory processes, and result in together a variety of skills and experiences in order to provide an significant mental and physical harm. (Principle E, “Psychologists are ethically appropriate service. (Ethical standard 3.09, cooperating with aware of and respect cultural, individual, and role differences, 190 | Ethics AbAndonEd Appendix 3 | 191

including those based on…race, ethnicity, culture, national origin… information, keeping in mind that, “Psychologists have a primary and consider these factors when working with members of such obligation and take reasonable precautions to protect confidential groups”; Ethical standard 2.01(b), boundaries of competence, information…” (Ethical standard 4.01, Maintaining confidentiality) “Where scientific or professional knowledge in the discipline of When disclosing sensitive information, psychologists share the psychology establishes that an understanding of factors associated minimum amount of information necessary, and only with individuals with…race, ethnicity, culture, national origin…is essential for who have a clear professional purpose for obtaining the information. effective implementation of their services or research, psychologists (Ethical standard 4.04, Minimizing intrusions on Privacy) Psychologists have or obtain the training, experience, consultation, or supervision take care not to leave a misimpression that information is confidential necessary to ensure the competence of their services, or they make when in fact it is not. (Ethical standards 3.10, informed consent, and appropriate referrals…”; and Ethical standard 3.01, Unfair 4.02, discussing the limits of confidentiality) , “in their work-related activities, psychologists do not 10. Psychologists are aware of and do not act beyond their engage in unfair discrimination based on…race, ethnicity, culture, competencies, except in unusual circumstances, such as set forth national origin…”) in the Ethics Code. (Ethical standard 2.02, Providing services in 3. how the combination of a setting’s ambiguity with high stress Emergencies) Psychologists strive to ensure that they rely on methods may facilitate engaging in behaviors that cross the boundaries that are effective, in addition to being safe, legal, and ethical. (Ethical individualof competence and ethical propriety. As behavioral standards 2.01, boundaries of competence; 2.04, bases for scientific scientists, psychologists are trained to observe, respond to, and ideally and Professional Judgments; 9.01, bases for Assessments) correct such processes as they occur. (Principle A, beneficence and 11. Psychologists clarify for themselves the identity of their client and nonmaleficence, and Ethical standard 3.04, Avoiding harm) retain ethical obligations to individuals who are not their clients. 8. Psychologists who consult on interrogation techniques are mindful (Ethical standards 3.07, third-Party requests for services, and 3.11, that the individual being interrogated may not have engaged in Psychological services delivered to or through organizations) untoward behavior and may not have information of interest to the regardless of whether an individual is considered a client, psychologists interrogator. this ethical obligation is not diminished by the nature of have an ethical obligation to ensure that their activities in relation to an individual’s acts prior to detainment or the likelihood of the the individual are safe, legal, and ethical. (Ethical standard 3.04, individual having relevant information. At all times psychologists remain Avoiding harm) sensitivity to the entirety of a psychologist’s ethical mindful of and abide by the prohibitions against engaging in or obligations is especially important where, because of a setting’s unique facilitating torture and other cruel, inhuman, or degrading treatment. characteristics, an individual may not be fully able to assert relevant Psychologists inform themselves about research regarding the most rights and interests. (Principle A, beneficence and nonmaleficence, effective and humane methods of obtaining information and become “in their professional actions, psychologists seek to safeguard the familiar with how culture may interact with the techniques consulted welfare and rights of those with whom they interact professionally and upon. (Principle E, respect for Peoples’ rights and dignity; Ethical other affected persons…”; Principle d, Justice, “Psychologists exercise standards 2.01, boundaries of competence; 2.03, Maintaining reasonable judgment and take precautions to ensure that their potential competence; and 3.01, Unfair discrimination) biases, the boundaries of their competence, and the limitations of their expertise do not lead to or condone unjust practices”; Principle E, 9. Psychologists make clear the limits of confidentiality. (Ethical respect for People’s rights and dignity, “Psychologists are aware that standard 4.02, discussing the limits of confidentiality) Psychologists special safeguards may be necessary to protect the rights and welfare of who have access to, utilize, or share health or mental health–related persons or communities whose vulnerabilities impair autonomous information do so with an awareness of the sensitivity of such decision-making”; Ethical standard 3.08, Exploitative relationships) 192 | Ethics AbAndonEd Appendix 3 | 193

12. Psychologists consult when they are facing difficult ethical WhErEAs APA’s status as an accredited ngo at the Un carries the commit- dilemmas. the task Force was emphatic that consultation on ethics ment to promote and protect human rights in accordance with the charter of questions and dilemmas is highly appropriate for psychologists at all the Un and the Universal declaration of human rights and to contribute its levels of experience, especially in this very challenging and ethically expertise and resources to the implementation of the various human rights dec- complex area of practice. (Preamble to the Ethics code, “the larations, conventions and other standards of the Un; development of a dynamic set of ethical standards for psychologists’ WhErEAs, consistent with its history in supporting human rights, in its work-related conduct requires a personal commitment and lifelong 1987 human rights resolution, APA issued a strong statement that “the disci- effort to act ethically…and to consult with others concerning ethical pline of psychology, and the academic and professional activities of psycholo- problems”; and Ethical standard 4.06, consultations) gists, are relevant for securing and maintaining human rights”; and undertook to promote knowledge of and compliance with Un instruments by resolving to commend the main Un human rights instruments and documents to the atten- American Psychological Association resolution tion of its boards, committees and membership at large; against torture and other cruel, inhuman, and degrading WhErEAs in its 1986 resolution Against torture, APA supported the United treatment or punishment (2006, footnotes omitted) nations declaration and convention Against torture and other cruel, WhErEAs the existence of state-sponsored torture and other cruel, inhu- inhuman, or degrading treatment or Punishment; man, or degrading treatment or cruel, inhuman, or degrading punishment has WhErEAs the American Psychological Association 1986 human rights been documented in many nations around the world (e.g., genefke, 2004; resolution is specific in its support for the United nations Principles of Medical Ethics human rights Watch, 2006; U.s. department of state, 2005); relevant to the role of health Personnel, particularly physicians, in the Protection of WhErEAs torture victims and victims of other cruel, inhuman, or degrading Prisoners and detainees against torture and other cruel, inhuman, or degrading treatment or cruel, inhuman, or degrading punishment may suffer from long-term, treatment or Punishment, which includes Principle 4a, “it is a contravention of med- multiple psychological and physical problems (e.g., carlsson, Mortensen, & kastrup, ical ethics for health personnel…to apply their knowledge and skills in order to assist 2005; gerrity, keane, & tuma, 2001; hermansson, timpka, & thyber, 2003; in the interrogation of prisoners and detainees in a manner that may adversely affect kanninen, Punamaki, & Qouta, 2003; somnier, vesti, kastrup, & genefke, 1992); the physical or mental health or condition of such prisoners or detainees and which is WhErEAs psychological knowledge and techniques (e.g., including but not not in accordance with the relevant international instruments”; limited to deprivation and disorientation techniques) may be used to design and WhErEAs the American Psychological Association 1986 human rights carry out torture and other cruel, inhuman, or degrading treatment or cruel, resolution is specific in its support for the joint congressional resolution opposing inhuman, or degrading punishment (e.g., conroy, 2000; hovens & drozdek, torture that was signed into law by President reagan on october 4, 1984; 2002; Mossallanejad, 2000); WhErEAs in August 2005 APA’s council of representatives approved the WhErEAs the Ethical Principles of the APA Ethical Principles of motion to acknowledge Principle 2.2 of the United nations convention Against Psychologists and code of conduct (2002) call upon members of the APA to torture and other cruel, inhuman, and degrading treatment or Punishment, respect the inherent dignity and worth of the individual and strive for the which states that “[t]here are no exceptional circumstances whatsoever, preservation and protection of fundamental human rights recognizing the equal whether induced by a state of war or threat of war, internal political instability and inalienable rights of all members of the human family; or any other public emergency, that may be invoked as a justification for torture, WhErEAs in 2000 APA received consultative status as a non-governmental including the invocation of laws, regulations, or orders”; organization (ngo) at the United nations (Un) in recognition of evidence pro- bE it rEsolvEd that the APA reaffirms its 1986 condemnation of torture and vided by APA of its efforts to promote human rights; other cruel, inhuman, or degrading treatment or cruel, inhuman, or degrading pun- WhErEAs as an accredited ngo at the Un, the APA is committed to the ishment wherever it occurs; spirit, purposes, and principles of the charter of the Un and other relevant bE it rEsolvEd that the APA reaffirms its support for the United nations international instruments; declaration and convention Against torture and other cruel, inhuman, or 194 | Ethics AbAndonEd Appendix 3 | 195 degrading treatment or Punishment and its adoption of Article 2.2, which in accordance with international human rights instruments relevant to their roles; states “[t]here are no exceptional circumstances whatsoever, whether induced bE it rEsolvEd that regardless of their roles, psychologists shall not by a state of war or a threat of war, internal political instability or any other pub- knowingly engage in, tolerate, direct, support, advise, or offer training in tor- lic emergency, that may be invoked as a justification of torture”; ture or other cruel, inhuman, or degrading treatment or cruel, inhuman, or bE it rEsolvEd that, in accordance with Article l of the United nations degrading punishment; declaration and convention Against torture and other cruel, inhuman, or bE it rEsolvEd that psychologists shall not provide knowingly any degrading treatment or Punishment, “[t]he term “torture” means any act by research, instruments, or knowledge that facilitates the practice of torture or which severe pain or suffering, whether physical or mental, is intentionally other forms of cruel, inhuman, or degrading treatment or cruel, inhuman, or inflicted upon a person for such purposes as obtaining from him or a third per- degrading punishment; son information or a confession, punishing him for an act he or a third person bE it rEsolvEd that psychologists shall not knowingly participate in any has committed or is suspected of having committed, or intimidating or coercing procedure in which torture or other forms of cruel, inhuman, or degrading him or a third person, or for any reason based on discrimination of any kind, treatment or cruel, inhuman, or degrading punishment is used or threatened; when such pain or suffering is inflicted by or at the instigation of or with the bE it rEsolvEd that should torture or other cruel, inhuman, or degrading consent or acquiescence of a public official or other person acting in an official treatment or cruel, inhuman, or degrading punishment evolve during a proce- [e.g., governmental, religious, political, organizational] capacity. it does not dure where a psychologist is present, the psychologist shall attempt to intervene include pain or suffering arising only from, inherent in, or incidental to lawful to stop such behavior, and failing that exit the procedure; sanctions [in accordance with both domestic and international law]”; bE it rEsolvEd that psychologists shall be alert to acts of torture and bE it rEsolvEd, that the term “cruel, inhuman, or degrading treatment or other cruel, inhuman, or degrading treatment or cruel, inhuman, or degrading punishment” means treatment or punishment by a psychologist that, in accor- punishment and have an ethical responsibility to report these acts to the appro- dance with the Mccain Amendment, is of a kind that would be “prohibited by priate authorities; the Fifth, Eighth, and Fourteenth Amendments to the constitution of the bE it FUrthEr rEsolvEd that, consistent with the August 2005 action United states, as defined in the United states reservations, declarations and of council, the APA will continually disseminate and publicize this 2006 Understandings to the United nations convention Against torture and other resolution Against torture and other cruel, inhuman, or degrading treatment Forms of cruel, inhuman or degrading treatment or Punishment done at new or Punishment, both within the Association (to boards, committees, and the York, december 10, 1984.” membership at large) and to the wider public. bE it rEsolvEd that, based upon the American Psychological Association 1986 human rights resolution, the APA reaffirms its support for the United Reaffirmation of the American Psychological Association position nations declaration and convention Against torture and other cruel, against torture and other cruel, inhuman or degrading treatment or punishment, inhuman, or degrading treatment or Punishment, Principles of Medical Ethics and its application to individuals defined in the United States as “enemy relevant to the role of health Personnel, particularly Physicians, in the combatants” (2007, amended 2008, footnotes omitted) Protection of Prisoners and detainees against torture and other cruel, inhuman, or degrading treatment or Punishment as well as the joint congres- WhErEAs the mission of the American Psychological Association is to sional resolution opposing torture that was signed into law by President reagan advance psychology as a science and profession and as a means of promoting health, education and human welfare through the establishment and mainte- on october 4, 1984, and further supports the Mccain Amendment, the United nance of the highest standards of professional ethics and conduct of the mem- nations basic Principles for the treatment of Prisoners, and the United nations bers of the Association; Principles on the Effective investigation and documentation of torture and WhErEAs the American Psychological Association is an accredited non- other cruel, inhuman, or degrading treatment or Punishment; governmental organization at the United nations and so is committed to pro- bE it rEsolvEd that based upon the APA’s long-standing commitment to mote and protect human rights in accordance with the United nations charter basic human rights, including its position against torture, psychologists shall work and the Universal declaration of human rights; 196 | Ethics AbAndonEd Appendix 3 | 197

WhErEAs the American Psychological Association passed the 2006 gency, that may be invoked as a justification for torture or cruel, inhuman, or resolution Against torture and other cruel, inhuman or degrading treatment degrading treatment or punishment, including the invocation of laws, regula- or Punishment, a comprehensive and foundational position applicable to all tions, or orders; individuals, in all settings and in all contexts without exception; bE it rEsolvEd that the American Psychological Association unequivocal- WhErEAs in 2006, the American Psychological Association defined torture in ly condemns torture and cruel, inhuman, or degrading treatment or punish- accordance with Article l of the United nations declaration and convention Against ment, under any and all conditions, including detention and interrogations of torture and other cruel, inhuman, or degrading treatment or Punishment, both lawful and unlawful enemy combatants as defined by the U.s. Military commissions Act of 2006; [T]he term “torture” means any act by which severe pain or suffering, bE it rEsolvEd that the unequivocal condemnation includes an absolute whether physical or mental, is intentionally inflicted upon a person for prohibition against psychologists knowingly planning, designing, and assisting such purposes as obtaining from him or a third person information or a in the use of torture and any form of cruel, inhuman or degrading treatment confession, punishing him for an act he or a third person has committed or or punishment; is suspected of having committed, or intimidating or coercing him or a bE it rEsolvEd that this unequivocal condemnation includes all tech- third person, or for any reason based on discrimination of any kind, when niques considered torture or cruel, inhuman or degrading treatment or pun- such pain or suffering is inflicted by or at the instigation of or with the ishment under the United nations convention Against torture and other consent or acquiescence of a public official or other person acting in an cruel, inhuman, or degrading treatment or Punishment; the geneva official [e.g., governmental, religious, political, organizational] capacity. conventions; the Principles of Medical Ethics relevant to the role of health It does not include pain or suffering arising only from, inherent in, or Personnel, Particularly Physicians, in the Protection of Prisoners and incidental to lawful sanctions [in accordance with both domestic and detainees against torture and other cruel, inhuman, or degrading treatment or Punishment; the basic Principles for the treatment of Prisoners; or the international law]; World Medical Association declaration of tokyo. An absolute prohibition WhErEAs in 2006, the American Psychological Association defined the against the following techniques therefore arises from, is understood in the term “cruel, inhuman, or degrading treatment or punishment” to mean treat- context of, and is interpreted according to these texts: mock executions; water- ment or punishment by a psychologist that, in accordance with the Mccain boarding or any other form of simulated drowning or suffocation; sexual Amendment, is of a kind that would be “prohibited by the Fifth, Eighth, and humiliation; rape; cultural or religious humiliation; exploitation of fears, pho- Fourteenth Amendments to the constitution of the United states, as defined bias or psychopathology; induced hypothermia; the use of psychotropic drugs in the United states reservations, declarations and Understandings to the or mind-altering substances; hooding; forced nakedness; stress positions; the United nations convention Against torture and other Forms of cruel, use of dogs to threaten or intimidate; physical assault including slapping or inhuman or degrading treatment or Punishment done at new York, shaking; exposure to extreme heat or cold; threats of harm or death; isolation; december 10, 1984.” specifically, United states reservation i.1 of the sensory deprivation and over-stimulation; sleep deprivation; or the threatened reservations, declarations and Understandings to the United nations use of any of the above techniques to an individual or to members of an indi- convention Against torture stating, “the term ‘cruel, inhuman or degrading vidual’s family. Psychologists are absolutely prohibited from knowingly plan- treatment or punishment’ means the cruel, unusual and inhumane treatment ning, designing, participating in or assisting in the use of all condemned tech- or punishment prohibited by the Fifth, Eighth, and/or Fourteenth niques at any time and may not enlist others to employ these techniques in Amendments to the constitution of the United states”; order to circumvent this resolution’s prohibition; bE it rEsolvEd that the American Psychological Association reaffirms bE it rEsolvEd that the American Psychological Association calls on the unequivocally the 2006 resolution Against torture and other cruel, inhuman, or United states government—including congress, the department of defense, degrading treatment or Punishment in its entirety in both substance and content; and the central intelligence Agency—to prohibit the use of these methods in all bE it rEsolvEd that the American Psychological Association affirms that interrogations and that the American Psychological Association shall inform there are no exceptional circumstances whatsoever, whether induced by a state relevant parties with the United states government that psychologists are pro- of war or threat of war, internal political instability or any other public emer- hibited from participating in such methods; 198 | Ethics AbAndonEd Appendix 3 | 199

bE it rEsolvEd that the American Psychological Association, in recogniz- Punishment; the United nations Principles of Medical Ethics relevant to the ing that torture and other cruel, inhuman or degrading treatment and punish- role of health Personnel, particularly Physicians, in the Protection of Prisoners ment can result not only from the behavior of individuals, but also from the con- and detainees against torture and other cruel, inhuman, or degrading ditions of confinement, expresses grave concern over settings in which treatment or Punishment; and the World Medical Association declaration of detainees are deprived of adequate protection of their human rights, affirms the tokyo: guidelines for Physicians concerning torture and other cruel, inhuman prerogative of psychologists to refuse to work in such settings, and will explore or degrading treatment or Punishment in relation to detention and ways to support psychologists who refuse to work in such settings or who refuse imprisonment; to obey orders that constitute torture; bE it rEsolvEd that the American Psychological Association, in order to bE it rEsolvEd that the American Psychological Association asserts that protect against torture and cruel, inhuman, or degrading treatment or punish- any APA member with knowledge that a psychologist, whether an APA member ment, and in order to mitigate against the likelihood that unreliable and/or inac- or non-member, has engaged in torture or cruel, inhuman, or degrading treat- curate information is entered into legal proceedings, calls upon United states ment or punishment, including the specific behaviors listed above, has an ethi- legal systems to reject testimony that results from torture or cruel, inhuman, or cal responsibility to abide by Ethical standard 1.05, --, in the Ethical Principles of degrading treatment or punishment. Psychologists and Code of Conduct (2002) and directs the Ethics committee to take appropriate action based upon such information, and encourages psychol- ogists who are not APA members also to adhere to Ethical standard 1.05; American Psychological Association Member Referendum bE it rEsolvEd that the American Psychological Association commends (passed 2008, footnotes omitted) those psychologists who have taken clear and unequivocal stands against tor- WhErEAs torture is an abhorrent practice in every way contrary to the ture and cruel, inhuman or degrading treatment or punishment, especially in APA’s stated mission of advancing psychology as a science, as a profession, and the line of duty, and including stands against the specific behaviors or condi- as a means of promoting human welfare; tions listed above; and that the American Psychological Association affirms WhErEAs the United nations special rapporteur on Mental health and the prerogative of psychologists under the Ethical Principles of Psychologists the Un special rapporteur on torture have determined that treatment equiva- and Code of Conduct (2002) to disobey law, regulations or orders when they lent to torture has been taking place at the United states naval base at conflict with ethics; guantánamo bay, cuba; bE it rEsolvEd that the American Psychological Association asserts WhErEAs this torture took place in the context of interrogations under the that all psychologists with information relevant to the use of any method of direction and supervision of behavioral science consultation teams (bscts) interrogation constituting torture or cruel, inhuman, or degrading treatment that included psychologists; or punishment have an ethical responsibility to inform their superiors of WhErEAs the council of Europe has determined that persons held in ciA such knowledge, to inform the relevant office of inspector generals when black sites are subject to interrogation techniques that are also equivalent to tor- appropriate, and to cooperate fully with all oversight activities, including ture, and because psychologists helped develop abusive interrogation tech- hearings by the and all branches of the United states niques used at these sites; government, to examine the perpetration of torture and cruel, inhuman, or WhErEAs the international committee of the red cross determined in degrading treatment or punishment against individuals in United states cus- 2003 that the conditions in the U.s. detention facility in guantánamo bay are tody, for the purpose of ensuring that no individual in the custody of the themselves tantamount to torture, and therefore by their presence psychologists United states is subjected to torture or cruel, inhuman, or degrading treat- are playing a role in maintaining these conditions; ment or punishment; bE it rEsolvEd that psychologists may not work in settings where persons bE it rEsolvEd that the APA Ethics committee shall proceed forthwith in are held outside of, or in violation of, either international law (e.g., the Un writing a casebook and commentary that shall set forth guidelines for psychol- convention Against torture and the geneva conventions) or the U.s. ogists that are consistent with international human rights instruments, as well constitution (where appropriate), unless they are working directly for the per- as guidelines developed for health professionals, including but not limited to: sons being detained or for an independent third party working to protect common Article 3 of the geneva conventions; the United nations convention human rights. Against torture and other cruel, inhuman, or degrading treatment or American Psychological Association revisions to Ethics Code 200 | Ethics AbAndonEd APPEndix 4

(2010, with changes to 2002 code indicated by strikeout for deletions Appendix 4: Professional and underlining for additions). Misconduct Complaints Filed 1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority if psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics code and take reasonable steps to resolve the conflict consistent with the general Principles and Ethical standards of the Ethics code. if the conflict is unresolvable via such means, psychologists may adhere to the requirements of the law, regulations, or other governing legal authority. Under no circumstances may this standard be used to justify or defend violating human rights. thE coMPlAints bEloW WErE FilEd against health professionals affiliated with U.s. military or intelligence forces in relation to the alleged mistreatment of 1.03 Conflicts Between prisoners in the course of U.s. counterterrorism operations since 2002.1 Ethics and Organizational Demands if the demands of an organization with which psychologists are affiliated or for whom they are working are in conflict with this Ethics code, psychologists clar- Complaints Against ify the nature of the conflict, make known their commitment to the Ethics code, Captain John S. Edmondson, MD: California and Georgia and to the extent feasible, resolve the conflict in a way that permits adherence to the Ethics code.take reasonable steps to resolve the conflict consistent with the captain John s. Edmondson, Md, was the commander of the guantánamo navy general Principles and Ethical standards of the Ethics code. Under no circum- hospital and the task force surgeon for the Joint task Force – guantánamo.2 As stances may this standard be used to justify or defend violating human rights. such, he was the head supervisor for the medical personnel staff and was direct- ly involved in the review of medical records and medical conditions of detainees.3 At least six professional misconduct complaints have been filed against him with medical boards in two states. none have led to formal charges.

MEdicAl boArd oF cAliForniA Mr. Saeed Ahmed Mohammed Abdullah Sarim et al. v. Dr. John Edmondson (2005)

Complaints: on July 11, 2005, Mr. saeed Ahmed Mohammed Abdullah sarim, Mr. Ali Yahya Mahdi al-raimi, Mr. Abdul khaliq Ahmed saleh al-baidhani, and Mr. Abdulaziz Abdu Abdullah Ali al-swidi filed complaints against dr. Edmondson with the Medical board of california. At the time, all four complainants were detained in guantánamo. they submitted individual medical complaints, along with news articles and opinions by medical and ethics experts. the complainants alleged that physicians and other medical personnel under the supervision of dr. 202 | Ethics AbAndonEd Appendix 4 | 203

Edmondson (1) shared personal medical information with interrogators, (2) hunger strikes…and the United nations Principles of Medical Ethics in the pro- refused necessary medical attention unless the patient cooperated with inter- tection of prisoners and detainees against torture and other cruel, inhuman or rogators, (3) participated actively and passively in , and (4) failed degrading treatment….” dr. nicholl stated that his complaint was based to provide basic consideration to patients in providing medical care. they alleged “entirely on the sworn testimony of dr. Edmondson himself.” he also alleged violations of california, national, and international standards of conduct.4 that he had tried to “engage with dr. Edmondson,” and that dr. Edmondson had “refuted all allegations out of hand and…refused to allow independent physi- Board Response: cians to examine his practice and the detainees….”9 the Medical board of california closed the complaints less than a week after receiving them, citing lack of jurisdiction.5 Board Response: in a letter dated July 5, 2007, susan cady of the central complaint Unit replied Legal Challenge: that the Medical board of california did “not have jurisdiction or authority to 10 Mr. sarim, Mr. al-raimi, Mr. al-baidhani, and Mr. al-swidi filed for a writ of investigate incidents that occurred on a federal facility/military base.” this let- mandamus in superior court of california and asked the court to compel the ter was dated almost 18 months after the Medical board of california had, in Medical board of california to investigate the complaint. the board admitted 2006 court proceedings, conceded jurisdiction over the 2005 sarem et al. com- jurisdiction but argued that they were under no obligation to reopen the case, plaint also involving allegations related to dr. Edmondson’s conduct at the U.s. 11 investigate, or provide reasons for their decision not to investigate. the case was naval station in guantánamo bay, cuba. argued on January 13, 2006, before Judge Jeffrey b. barton of the superior court of california, san diego central civil division.6 on March 16, 2006, Judge barton sustained the demurrer and denied petition for mandamus, holding that gEorgiA coMPositE stAtE boArd the board had no affirmative duty to investigate public complaints.7 oF MEdicAl ExAMinErs Dr. David Nicholl v. Dr. John Edmondson (2006)

MEdicAl boArd oF cAliForniA Complaint: Dr. David Nicholl v. Dr. John Edmondson (2006) dr. nicholl filed another formal complaint (also dated January 26, 2006) against dr. Edmondson in georgia, where dr. Edmondson was also licensed.12 the Complaint: allegations were identical to those made in his complaint to the Medical board 13 british physician david nicholl filed a complaint against dr. Edmondson with of california. the Medical board of california. the complaint is dated January 26, 2006.8 dr. nicholl alleged that dr. Edmondson, in his capacity as commander of the U.s. Board Response: naval hospital and task force surgeon for Joint task Force – guantánamo, had “ignored the principle of informed patient consent in his involuntary feeding on June 26, 2007, in response to a letter sent by dr. nicholl eight days earlier technique,” amounting to a “fundamental breach of the doctor-patient relation- inquiring as to the disposition of his complaint, dr. Jim Mcnatt, medical director ship and a breach of state medical laws.” dr. nicholl also alleged breaches of of the georgia composite state board of Medical Examiners, communicated to “medical ethics and accepted professional standards—including a number of dr. nicholl that his complaint had been “thoroughly investigated, including a international declarations, including the 1975 declaration of tokyo on torture, thorough review of all medical records and other information gathered during the 1991 declaration of Malta on hunger strikers, as well as the guidance of the the investigation.” the “[i]nformation gathered during and for the investigation,” international committee of the red cross (icrc) on the management of the letter states, “is confidential by statute.” the board concluded that “there was 204 | Ethics AbAndonEd Appendix 4 | 205 not sufficient evidence to support prosecution” of dr. Edmondson under the dr. bond, when she informed the deputy director of his supervisor’s initial state’s medical practice act or the board’s rule, and left open the possibility of response, the deputy director said that he deferred to his supervisor and would reconsidering the case if dr. nicholl were to submit additional information.14 check with him on the matter, but repeated that he did not understand why the new York office would not have jurisdiction. neither he nor the director refer- enced any statutory or regulatory provision as support for the oPd’s decision. on Complaints Against February 29, 2008, bond called the central Administration office to ask for a Captain John Francis Leso: New York written decision from the oPd, and to inquire as to whether she had recourse to challenge that decision. Mr. kelleher was not present. she was asked to call back 18 captain John Francis leso allegedly led the first behavioral science at another time and never received a written communication. consultation team (bsct) at the U.s. naval station at guantánamo from June 2002 to January 2003.15 At least two professional misconduct complaints nEW York oFFicE against him have been filed with the new York office of Professional discipline oF ProFEssionAl disciPlinE (oPd). the oPd did not investigate either complaint. Dr. Steven Reisner v. Dr. John Leso (2010) nEW York oFFicE Complaint: oF ProFEssionAl disciPlinE 19 Dr. Trudy Bond v. Dr. John Leso (2007) on July 7, 2010, new York-licensed civilian psychologist dr. steven reisner filed a complaint against fellow new York licensee, dr. leso, with the oPd. dr. reisner’s complaint alleged that dr. leso “co-authored an interrogation policy Complaint: memorandum that incorporated illegal techniques adapted from methods used by on April 5, 2007, a civilian psychologist, dr. trudy bond,16 filed a complaint the chinese and north korean governments against U.s. prisoners of war.” dr. against dr. leso with the new York state Education department’s office of reisner further alleged that dr. leso “recommended a series of increasingly psy- Professional discipline. she alleged violations of several provisions of the rules chologically and physically abusive interrogation techniques to be applied against of the board of regents, which govern unprofessional conduct of health profes- detainees held by the United states”; that “[m]any of the techniques and condi- sionals licensed in new York. the violations alleged included: (1) performing tions that dr. leso helped put in place were applied to suspected al-Qaeda mem- unduly authorized professional services, (2) failing to respond to written com- ber Mohammed al-Qahtani under dr. leso’s direct supervision, as well as to other munications from the education department and to make available records to men and boys held at guantánamo”; and that “[e]ventually, similar techniques an inquiry or complaint, (3) abandoning or neglecting a patient or client in were also used on detainees held in U.s. custody in iraq and Afghanistan.”20 need of immediate care, (4) willful , abuse, or intimidation of According to dr. reisner, the alleged conduct violated provisions in the new York patient or client, and (5) failing to maintain an accurate patient record.17 Education law and the rules of regents prohibiting: (1) practice beyond author- ized scope, (2) gross incompetence, (3) gross negligence, (4) unprofessional con- duct, (5) conduct exhibiting a moral unfitness to practice the profession, (6) Board Response: unauthorized treatment, (7) of a patient in need of immediate care, (8) shortly after submitting the complaint, dr. bond reported receiving a phone call willful abuse and harassment, and (9) unwarranted treatment.21 from daniel kelleher, oPd’s director of investigations, who said that the oPd had no jurisdiction over new York-licensed federal employees acting outside the state. Board Response: Mr. kelleher reportedly referred her subsequent questions to the deputy director of investigations. dr. bond reported calling the deputy director, who said to her in a letter dated July 28, 2010, the oPd denied jurisdiction over the complaint. oPd director louis catone found “no basis for investigating” dr. reisner’s that there would be no jurisdictional problem in pursuing the case. According to 206 | Ethics AbAndonEd Appendix 4 | 207 complaint, stating that it did “not appear that any of the conduct complained of consultation team (bsct) at the detention center at guantánamo from constitutes the practice of psychology as understood in the state of new York.” January 2003 to May 2003 and June 2007 to May or June 2008.29 he was also the decision, Mr. catone wrote, was based on the apparent absence of “any director of the behavioral science Unit in the Joint interrogation and therapist-patient relationship between dr. leso and any of the guantánamo debriefing center at the in iraq from June to october detainees” and the oPd’s interpretation of the phrase “modification of behavior 2004.30 in 2008, he was named dean of the school of Professional Psychology at for the purpose of…eliminating…undesired behavior” in the 2003 statutory Wright state University in dayton, ohio. At least four professional misconduct definition of the practice of psychology as “referring to behavior undesired by complaints were filed against him with psychology boards in two states. neither one’s patient, not behavior undesired by third parties.”22 board has brought charges. on August 26, 2010, dr. reisner’s attorney requested that oPd reconsider its position, arguing that dr. leso’s conduct at guantánamo fell squarely within loUisiAnA stAtE boArd the legal definition of psychology in new York. the letter added that dr. leso oF ExAMinErs oF PsYchologists had represented himself as a psychologist, conduct for which new York requires Dr. Trudy Bond v. Dr. Larry James (2008) a license.23 the oPd did not respond to the request for reconsideration. Complaint: Legal Challenge: on February 29, 2008, ohio-licensed psychologist dr. trudy bond filed a com- on november 24, 2010, dr. reisner filed a petition in new York district court, plaint with the louisiana state board of Examiners of Psychologists (lsbEP) requesting that the court invalidate the oPd’s denial and direct the oPd to ini- requesting that it investigate dr. James. the complaint included allegations that tiate an investigation into the complaint. he argued that the oPd had erred in dr. James was chief psychologist of the Joint intelligence group at guantánamo its interpretation of the statute, acted arbitrarily and capriciously in dismissing at a time when it was camp policy to prevent detainees from having contact the complaint, and that the oPd had a mandatory duty to investigate allega- with the icrc and to isolate detainees for 30 days to “enhance and exploit tions of professional misconduct under both new York law and the agency’s [their] disorientation and disorganization” for interrogation purposes. the com- 24 own rules and regulations. the oPd moved to dismiss, alleging that dr. plaint alleged that these actions were a violation of American Psychological reisner lacked standing to challenge the dismissal because he was not injured Association ethics and illegal.31 by the action and that he had failed to state a cause of action.25 Judge salliann scarpulla, of the supreme court of new York, heard oral Board Response: arguments on April 6, 2011.26 new York’s attorney general told the court that dr. leso “apparently was asked to use his skills as a weapon, not to help the on April 15, 2008, the lsbEP responded with a letter dismissing the com- mental health of the detainees.”27 on August 11, 2011, Judge scarpulla dismissed plaint, stating that the statute of limitations had run out. the letter further dr. reisner’s petition on the ground that he had no standing to bring the case. communicated the lsbEP’s consideration of “all allegations of wrongdoing” by her decision did not reach the question of whether dr. leso’s alleged actions louisiana-licensed psychologists and mentioned that dr. bond’s complaint had constituted the “practice of psychology” under new York law.28 been reviewed by a complaints coordinator and presented before the board on March 28, 2008.32 dr. bond’s attorney responded to the lsbEP on April 23, 2008, disputing the Complaints Against lsbEP’s interpretation of the statute of limitations. he provided further informa- Retired Colonel Larry C. James: Louisiana and Ohio tion on the dates of dr. James’s alleged conduct as well as the dates of dr. bond’s discovery of the alleged conduct.33 on June 19, 2008, bond’s legal counsel sub- colonel larry James, Md, was the senior intelligence psychologist for the Joint mitted to the lsbEP additional information that had been publicly revealed 34 intelligence group and alleged commander of the behavioral science since the initial complaint. At a second meeting on June 20, 2008, the lsbEP 208 | Ethics AbAndonEd Appendix 4 | 209 affirmed its decision not to investigate dr. James on statute of limitations neither the 19th district court nor the First circuit court decision com- grounds and communicated this decision to dr. bond on June 25, 2008.35 mented on the substance of the allegations made against dr. James in the under- lying complaint. Legal Challenge on July 22, 2008, dr. bond filed a Petition for Judicial review with the 19th ohio stAtE boArd oF PsYchologY Judicial district court of the state of louisiana. the petition alleged that the Dr. Trudy Bond v. Dr. Larry James (2008) lsbEP’s decision was “clearly contrary to the law,” provided no factual basis for its dismissal, and was “arbitrary, capricious and/or characterized by abuse of Complaint: discretion.” dr. bond requested that the court either (1) issue a declaratory Upon learning that dr. James would seek licensure in ohio as part of his judgment that her complaint had been timely filed and remand to the lsbEP appointment as dean of the school of Professional Psychology at Wright state, for an investigation and a hearing or (2) authorize discovery regarding the dr. bond filed a complaint to the ohio state board of Psychology (osbP) on issue of timeliness.36 July 8, 2008, requesting an investigation, evidentiary hearings at which she the lsbEP filed an answer on August 25, 2008, and later, a motion for could present evidence, and the denial of his application. the complaint peremptory exception of no right of action on May 5, 2009. it denied that its alleged, among other things, “real, substantial, knowing and ongoing” involve- 37 decision was contrary to law, arbitrary, or an abuse of discretion and requested ment by dr. James in the torture of prisoners that rendered him “unfit for licen- that the court dismiss the action. the lsbEP argued that, as an ohio psycholo- sure” in ohio and included references to government, media, and American gist, dr. bond did not have legal standing to seek judicial review and that she Psychological Association reports. dr. bond alleged that dr. James had violated 38 had failed to state a right of action in her petition. the ohio Administrative code and the American Psychological Association Following two months of briefing the issues of standing and right of action, code of Ethics.44 Judge r. Michael caldwell heard oral arguments on July 13, 2009.39 on July 24, 2009, he granted the lsbEP a peremptory exception of no right of action and Board Response: dismissed the case with prejudice, finding that the “board’s decision not to con- duct a hearing into any disciplinary proceedings, whether based on an issue of on september 16, 2008, the osbP responded that it had reviewed the com- law or an issue of fact, is not an appealable decision.”40 plaint contemporaneously with dr. James’s application for licensure but “deter- dr. bond appealed the decision to the louisiana First circuit court of Appeal.41 mined that no foundation exists to support the initiation of formal proceedings three national organizations—Psychologists for social responsibility, serving to deny dr. James admission to the board’s licensure examination.” the 45 Psychoanalysis for social responsibility, and Psychologists for an Ethical APA— letter provided no further justification for dismissing the complaint. along with louisiana-based organizations the Juvenile Justice Project of louisiana dr. trudy bond, Mr. Michael reese, rev. colin bossen, and dr. Josephine 46 and the institute of Women and Ethnic studies, filed an amicus brief in support of setzler v. dr. larry James (2010) dr. bond’s argument that the lsbEP had a “statutory duty to conduct hearings on serious allegations of misconduct by louisiana psychologists,” and that judicial Complaint: review was required in this case.42 on July 7, 2010, three additional ohio residents joined dr. bond in filing a new the court concluded that dr. bond lacked standing and a right of action to complaint with the osbP: former U.s. Army Private Michael reese, Unitarian seek judicial review of the dismissal: “…while dr. bond may have a professional Universalist minister rev. colin bossen, and Josephine setzler, executive direc- or ethical duty as a psychologist to file a complaint with the lsbEP about a fel- tor of a local affiliate of the national Alliance on Mental illness. the 2010 com- low psychologist’s interrogation techniques,” Judge robert downing wrote, plaint contained additional information, some of it drawn from a memoir writ- “she, however, has no justiciable right to maintain this action for judicial ten by dr. James and published subsequent to the filing of the 2008 complaint.47 review.”43 dr. bond did not appeal this decision. the new complaint alleged that dr. James had (1) demonstrated a lack of good 210 | Ethics AbAndonEd Appendix 4 | 211 moral character, (2) exhibited negligence in the practice of psychology, (3) skeens denied both oral argument and discovery and dismissed the mandamus exploited the dependency of his clients and failed to protect them from harm, petition. the magistrate concluded that ohio law did not grant the complainants (4) maintained prohibited “multiple relationships” by assuming conflicting standing or a right to the relief of mandamus review, and rejected the argument roles in treatment and interrogation that compromised his judgment and objec- that the osbP had a legal duty to conduct a good faith investigation and hearing tivity and led to detainee exploitation, (5) failed to maintain confidentiality by of their complaint. instituting a policy that granted bsct access to medical records of detainees, on december 30, 2011, the complainants filed an objection to the magis- and (6) misrepresented to the osbP his experience as a military psychologist trate’s decision, to which the osbP responded on January 9, 2012. As of and misrepresented to the public his role in detainee abuse. complainants december 2012, the case remained pending before Judge beatty. alleged violations of 18 provisions of laws and rules regulating psychology in complaint Against : texas ohio. they requested an investigation into dr. James’s fitness to practice psy- A former military psychologist, dr. James Elmer Mitchell allegedly served as chology and ultimately the permanent revocation of his license to a contract psychologist for the ciA in 2002. practice in the state of ohio.48 tExAs stAtE boArd Board Response: oF ExAMinErs oF PsYchologists in response to complainants’ request, osbP staff and one board member met Dr. Jim Cox v. Dr. James Mitchell (2010) with complainants and their counsel on september 30, 2010. complainants alleged that although the stated purpose of the meeting was to answer legal or Complaint: factual questions that might concern the osbP, the osbP stated that it had no on June 17, 2010, texas psychologist dr. Jim cox filed a complaint with the questions and requested to speak with no witnesses.49 Almost seven months texas state board of Examiners of Psychologists (tsbEP), alleging that dr. later, in a letter dated January 26, 2011, the osbP stated that it had “completed Mitchell had been one of the primary architects of the ciA’s torture techniques its review” of the complaint, and that “[i]t [had] been determined that [it was] and that he had allegedly enabled and personally participated in the torture of unable to proceed to formal action in this matter.”50 no reason was provided. a detainee known as Abu Zubaydah. the complaint alleged that dr. Mitchell (1) misrepresented his professional qualifications and experience to the ciA, (2) Legal Challenge: failed to take reasonable steps to ensure the safety of others in the design of the interrogation regime and therefore acted without a scientific basis, and (3) vio- on April 13, 2011, dr. bond, Mr. reese, rev. bossen, and dr. setzler filed a lated his professional duty to persons in his care by torturing prisoners held in petition for a writ of mandamus with the Franklin county court of common U.s. custody himself and directly supervising others who engaged in torture at Pleas in ohio, asking the court to compel the osbP to proceed to formal action his direction. the complaint alleged violations of 11 provisions of the based on the evidence presented in the complaint, or alternatively, to order the Psychologists licensing Act and the rules promulgated by the board under the osbP to investigate meaningfully and in good faith. they requested that the act, including norms governing competency; professional objectivity; improper osbP be required to provide clearly articulated reasons grounded in fact or law sexual conduct; and evaluation, assessment, and testing of a human subject for any decision,51 as well as production of all documents related to the osbP’s without informed consent.56 handling of the complaint.52 the osbP moved to dismiss, alleging lack of dr. cox requested review of the matter and appro- standing and failure to state a claim and requested a stay on the document pro- priate action. duction ruling.53 complainants responded by asserting both private and public the American Psychological Association submitted a letter to the tsbEP say- interest standing.54 ing “[i]f any psychologist member of APA were proven to have committed the on october 24, 2011, Judge laurel beatty of the Franklin county court of alleged acts as set forth in the complaint before the board, he or she would be common Pleas referred all pending motions, including requests for discovery and expelled from the APA membership. the relevant state licensing board(s) would oral argument, to Magistrate Ed skeens.55 on december 16, 2011, Magistrate be notified of this APA action, and it would be our expectation that the individ- 212 | Ethics AbAndonEd Appendix 4 | 213 ual’s state license to practice psychology would be revoked.”57 dr. Mitchell is not ance technique and recommended that he be placed in physical and linguistic a member of the American Psychological Association. isolation to increase his discomfort as a way to induce his cooperation.” dr. bond quoted a report allegedly prepared by dr. Zierhoffer as saying: “he Board Response: appears to be rather frightened, and it looks as if he could break easily if he were on February 8, 2011, the tsbEP held an informal settlement conference in isolated from his support network and made to rely solely on the interrogator… which a three-member disciplinary review panel received evidence and heard Make him as uncomfortable as possible. Work him as hard as possible.” the from both parties at separate times, in ex-parte confidential proceedings. complaint alleged that dr. Zierhoffer recommended that Jawad be sent to isola- Following a meeting on February 10, 2011, the tsbEP dismissed dr. cox’s com- tion for another 30 days, moved to a section of the prison where he would be plaint against dr. Mitchell, citing insufficient evidence of a violation.58 the only Pashto speaker, and be made to believe that his family had forgotten him. dr. bond alleged that these actions led to the deterioration of Jawad’s men- tal health and culminated in a suicide attempt.61 Legal Challenge: on october 17, 2011, dr. cox filed a request for declaratory judgment under Board Response: texas law that dr. Mitchell’s conduct was contrary to the tsbEP rules, and that if his conduct was not contrary to the rules, that those rules are invalid. the less than a month later, on december 18, 2008, AbEP denied dr. bond’s “request request cited dr. Mitchell and the tsbEP as defendants and included support- for [the board] to accept jurisdiction over [her] complaint,” stating that it had ing declarations from psychologists Michael Wessell and stephen soldz. A hear- given “careful consideration and extensive research into the feasibility of the board’s investigation of the issues raised in the complaint.”62 ing was scheduled for december 8, 2011.59 the trial court dismissed the com- on February 17, plaint for lack of standing.60 2009, terry lodge, counsel for dr. bond, responded to the AbEP’s determination, arguing that the AbEP had failed to follow investigative procedures in response to dr. bond’s complaint, as required under the Alabama Administrative code.63 the Complaint Against board has not responded to Mr. lodge’s request that the board follow the admin- Lieutenant Colonel Diane Michelle Zierhoffer: Alabama istrative code procedures. on April 1, 2009, dr. bond filed a supplement that added the declaration of dr. diane Michelle Zierhoffer was a lt. col. in the U.s. Army who allegedly lieutenant colonel darrel vandeveld, U.s. Army reserve JAg corps, to her served as a bsct psychologist at guantánamo. original complaint. lt. col. vandeveld was the lead prosecutor in the military commission case against Mohammed Jawad. in his declaration, vandeveld AlAbAMA boArd described his experience with Jawad’s case and his impression that, in her oF ExAMinErs in PsYchologY alleged function as a bsct psychologist, dr. Zierhoffer “employed [her] profes- sional training and expertise in a profoundly unethical manner.”64 As of Dr. Trudy Bond v. Dr. Diane Zierhoffer (2008) december 2012, the board had not responded to the February 2009 letter or the April 2009 supplement. Complaint: on november 21, 2008, dr. trudy bond filed a complaint with the Alabama board of Examiners in Psychology (AbEP) against dr. diane Zierhoffer. the complaint alleged that dr. Zierhoffer was called to do a mental assessment of an adolescent detainee, Mohammed Jawad, whose behavior had given an inter- rogator cause for concern about his mental health, and that in response, she had concluded that he was “faking homesickness, sadness and depression as a resist- Notes

ExEcUtivE sUMMArY

1 there are many accounts of the genesis of the new policy and their legality. some include Jane Mayer, the dark side (2009) and Philippe sands, Torture Team (2007). Additional references are in chapter 1.

2 steven h. Miles, Oath Betrayed: Torture, Medical Complicity, and the War on Terror (new York: random house, 2006); Physicians for human rights, Break Them Down: The Use of Psychological Torture against Detainees in US Custody (cambridge, MA: Physicians for human rights, 2005). 3 central intelligence Agency, career opportunities, “Medical officer,” https://www.cia.gov/careers/opportunities/support-professional/medical-officer.html. 4 central intelligence Agency, office of Medical services, “oMs guidelines on Medical and Psychological support to detainee rendition, interrogation, and detention” (May 2004), 8, n. 2, http://www.aclu.org/torturefoia/released/103009/cia-olc/2.pdf. two other versions of this document that have been released, one from september 2003 and another from december 2004, are identical in this respect. 5 Many of the relevant documents in the period 2002–2005, released through 2006, are collected in Jaffer and singh, The Administration of Torture (2007). Many of the legal memos are collected in david cole, The Torture Memos (2009). 6 see, e.g., Fletcher and stover, The Guantanamo Effect (2009). Additional references are in chapter 1. 7 Alfred W. Mccoy, A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror (new York: Metropolitan books, 2006). 8 oMs guidelines (May 2004).

9 U.s. senate committee on Armed services, Inquiry into the Treatment of Detainees in U.S. Custody, 110th cong., 2d sess. (2008), http://www.armed-services.senate.gov/Publications/detainee%20 report%20Final_April%2022%202009.pdf. 10 U.s. department of Justice, office of legal counsel, “Memorandum for John rizzo, Acting general counsel of the central intelligence Agency: interrogation of al Qaeda operative” (August 2002), 4, http://dspace.wrlc.org/doc/bitstream/2041/70967/00355_020801_004display.pdf. 11 oMs guidelines (May 2004). 216 | Ethics AbAndonEd Notes | 217

12 U.s. department of Justice, office of legal counsel, “Memorandum for John A. rizzo, senior 11 central intelligence Agency, office of Medical services, “oMs guidelines on Medical and deputy general counsel, central intelligence Agency, re: Application of 18 U.s.c. §§ 2340- Psychological support to detainee rendition, interrogation, and detention” (May 2004), 8, 2340A to certain techniques that May be Used in the interrogation of a high value al Qaeda n. 2, http://www.aclu.org/torturefoia/released/103009/cia-olc/2.pdf. two other versions of this detainee” (May 2005), http://www.fas.org/irp/agency/doj/olc/techniques.pdf. document that have been released, one from september 2003 and another from december 2004, are identical in this respect. 13 the planning and implementation of this interrogation is reviewed in U.s. senate committee on Armed services, Inquiry into the Treatment of Detainees in U.S. Custody (2008). see chapter 1 for additional references. 14 Physicians for human rights, Broken Laws, Broken Lives: Medical Evidence of Torture by US chAPtEr 1 Personnel and Its Impact (cambridge, MA: Physicians for human rights, 2008). 15 U.s. department of the Army, office of the surgeon general, Final Report: Assessment of 1 laurel E. Fletcher and Eric stover, The Guantanamo Effect: Exposing the Consequences of Detainee Medical Operations for OEF, GTMO, and OIF (2005), U.S. Detention and Interrogation Practices (berkeley and los Angeles: University of california http://www.globalsecurity.org/military/library/report/2005/detmedopsrpt_13apr2005.pdf. Press, 2009).

16 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee 2 Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned Into a War on operations” (6 June 2006), http://www.dtic.mil/whs/directives/corres/pdf/231008p.pdf. American Ideals (new York: Anchor books, 2009). 3 ibid. 4 ibid., 43. introdUction 5 U.s. department of Justice, office of legal counsel, “Memorandum for John A. rizzo, Acting general counsel, central intelligence Agency, re: Application of the War crimes Act, the 1 U.s. national institutes of health, office of history, “nuremburg code” (1947), , and common Article 3 of the geneva conventions to certain techniques http://history.nih.gov/research/downloads/nuremberg.pdf. that May be Used by the ciA in the interrogation of high value al Qaeda detainees” (20 July 2007), http://www.justice.gov/olc/docs/memo-warcrimesact.pdf [hereafter cited as olc 2007]. 2 Un general Assembly, resolution 217 A (iii), Universal Declaration of Human Rights (10 december 1948), http://www.unhcr.org/refworld/docid/3ae6b3712c.html. 6Jane Mayer, The Dark Side (2009); U.s. senate committee on Armed services, Inquiry into the Treatment of Detainees in U.S. Custody (2008); Joseph Margulies, Guantanamo and the Abuse 3 international committee of the red cross, Geneva Convention Relative to the Treatment of of Presidential Power (2008); Fletcher and stover, The Guantanamo Effect (2009); international (12 August 1949), 75 Unts 135, Prisoners of War (Third Geneva Convention) committee of the red cross, ICRC Report on the Treatment of Fourteen “High Value Detainees” http://www.unhcr.org/refworld/docid/3ae6b36c8.html. in CIA Custody (2007); Physicians for human rights, Break Them Down (2005); neil lewis, “ 4 Philip spoerri, “the geneva conventions of 1949: origins and current significance” (Address, red cross Finds detainee Abuse in guantanamo,” New York Times (30 november 2004). Many international committee of the red cross ceremony to celebrate the 60th anniversary of the key documents in the public record, almost all from the U.s. military and some from the Justice geneva conventions, 12 August 2009), www.icrc.org/web/eng/siteeng0.nsf/ html/geneva- department, are contained in Jaffer and singh, Administration of Torture (2006). certain ciA conventions-statement-120809. documents and Justice department opinions were released by the obama administration in 2009.

5 international committee of the red cross, “commentary – Art. 130. Part vi,” Geneva Convention 7 Un general Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading (III) relative to the Treatment of Prisoners of War (12 August 1949), http://www.icrc.org/ihl.nsf/ Treatment or Punishment: resolution / adopted by the General Assembly (1984), http://www.ohchr.org/ coM/375-590156?opendocument. En/Professionalinterest/Pages/cAt.aspx; “definitions,” U.S. Code 18 (1994), § 2340.

6 darius rejali, Torture and Democracy (Princeton: Princeton University Press, 2007), 399. 8 tom Malinowski, “banned state department Practices,” in Torture: Does it Work? Is It Ever OK? A Human Rights Perspective, ed. and Minky Worden (new York: the new Press, 2005). 7 World Medical Association, Declaration of Tokyo (1975; revised May 2006), www.wma.net/ en/30publications/10policies/c18/index.html. 9 Physicians for human rights and human rights First, Leave No Marks: Enhanced Interrogation and the Risk of Criminality (Physicians for human rights and human rights First, 2007); darius 8 Un general Assembly, Convention against Torture and Other Cruel, Inhuman or rejali, Torture and Democracy (2007); Philippe sands, Torture Team (2007). Degrading Treatment or Punishment: resolution / adopted by the General Assembly (1984), http://www.ohchr.org/En/Professionalinterest/Pages/cAt.aspx. 10 Jane Mayer, The Dark Side (2009) [see note 2]. 11 Jane Mayer, (2009); steven Miles, (2006); steven Miles, “Medical 9 “definitions,” U.S. Code 18 (1994), § 2340, http://www.law.cornell.edu/uscode/text/18/2340. The Dark Side Oath Betrayed Ethics and the interrogation of guantanamo 063,” American Journal of Bioethics 7, no. 5 (2007): 10 central intelligence Agency, career opportunities, “Medical officer,” https://www.cia.gov/ 1–7; bloche and Marks, “doctors and interrogators at guantanamo bay,” New England Journal of careers/opportunities/support-professional/medical-officer.html. Medicine 353 (2005); leonard s. rubenstein, “First, do no harm: health Professionals and 218 | Ethics AbAndonEd Notes | 219

guantanamo bay,” Seton Hall Law Review 37 (2007): 733-748; Physicians for Human Rights, organizations, however, have reported ongoing abuses, including solitary confinement for the Break Them Down (2005); rubenstein and xenakis, “roles of ciA Physicians in Enhanced majority of detainees, continued use of sensory deprivation and environmental manipulation, interrogation and torture of detainees,” JAMA 304, no. 5 (2010): 569–570. physical assault on detainees by the prison’s immediate reaction Force, denial of independent medical evaluations, continued use of force-feeding, and severe limitations on communications 12 the task Force has no knowledge of whether detainees in ciA custody engaged in hunger with the outside world. center for constitutional rights, Current Conditions of Confinement at strikes, and if so, what role, if any, health professionals played in seeking to break them. nor Guantanamo (new York: center for constitutional rights, 23 February 2009), does the task Force have any knowledge whether health professionals participated in setting http://ccrjustice.org/files/ccr_report_conditions_At_guantanamo.pdf. the conditions of confinement for detainees in ciA custody. 22 olc 2007. 13 in 2002, the U.s. Justice department issued legal opinions interpreting the U.s. anti-torture statute and the inherent power of the president to allow techniques of interrogation, including 23 katherine shrader, , “U.s. has detained 83,000 in War on terror,” waterboarding, stress positions, exposure to extreme temperatures, confinement in a small box, Washington Post (16 november 2005), http://www.washingtonpost.com/wp-dyn/content/ and others. the opinions included extremely constricted interpretations of the meaning of the article/2005/11/16/Ar2005111601475_pf.html. key phrase “severe physical or mental pain or suffering,” so as to exclude most practices. these interpretations also required that the alleged perpetrator specifically intend to cause such pain. 24 scott Allen and others, “deaths of detainees in custody of Us Forces in iraq and Afghanistan david luban, “liberalism, torture and the ticking bomb,” in the torture debate in America, from 2002–2005,” MedGenMed 8, no. 4 (2006): 46. ed. karen greenberg (new York: cambridge University Press, 2006). later opinions from the 25 Fletcher and stover, The Guantanamo Effect (2009); tom lasseter, “U.s. Abuse of detainees Justice department relied far more heavily on medical input. U.s. department of Justice, office Was routine in Afghanistan bases,” McClatchy Newspapers (17 June 2008), of legal counsel, “Memorandum for John A. rizzo, senior deputy general counsel, central http://www.mcclatchydc.com/2008/06/16/38775/day-2-us-abuse-of-detainees-was.html. intelligence Agency, re: Application of 18 U.s.c. §§ 2340-2340A to certain techniques that May be Used in the interrogation of a high value al Qaeda detainee” (May 2005). contrary to 26 Major general george r. Fay, “Ar 15-6 investigation of the Abu ghraib detention Facility international and domestic consensus on the scope of international legal obligations, the bush and 205th Military intelligence brigade” (2004), 41, http://fl1.findlaw.com/news.findlaw.com/ administration also took the position that the prohibition on cruel, inhuman, or degrading hdocs/docs/dod/fay82504rpt.pdf; Fletcher and stover, The Guantanamo Effect (2009); treatment did not apply to the ciA. Physicians for Human Rights, Broken Laws, Broken Lives (2008); tom lasseter, “U.s. Abuse of detainees Was routine in Afghanistan bases,” McClatchy Newspapers (17 June 2008); 14 the role of physicians in supervising individuals who are not physicians is important for tim golden, “in U.s. report, brutal details of 2 Afghan inmates’ deaths,” New York Times understanding the overall responsibility of physicians for acts relating to detainees in the past, (20 May 2005), http://www.nytimes.com/2005/05/20/international/asia/20abuse.html? but also prospectively, since medics and corpsmen are capable of performing many of the pagewanted=all/. functions of physicians and should be considered in attempts to prevent medical misconduct in the future. the task Force understands that physicians have played a role in reviewing the 27 U.s. department of defense, office of the secretary of defense, Review of Defense performance of medics and corpsmen, but does not have information about the precise Detention Operations and Detainee Interrogation Techniques, by Admiral A.t. church (2006), supervisory role at guantanamo and other places of detention. http://www.aclu.org/images/torture/asset_upload_file625_26068.pdf (redacted version) and http://www.aclu.org/files/pdfs/safefree/church_353365_20080430.pdf (pages that were 15 Hamdan v. Rumsfeld, 548 U.s. 557 (2006). originally redacted); steven h. Miles, Oath Betrayed: Torture, Medical Complicity, and the War on Terror (new York: random house, 2006). 16 U.s. department of the Army, headquarters, FM 2-22.3 (FM 34-52), Human Intelligence Collector Operations (september 2006), http://scip.cms-plus.com/files/resources/Arny-human- 28 Physicians for human rights, Broken Laws, Broken Lives: Medical Evidence of Torture by US intelligence-collector.pdf. Personnel and Its Impact (cambridge, MA: Physicians for human rights, 2008); laurel E. Fletcher and Eric stover, (berkeley: human rights center 17 U.s. department of defense, directive 3115.09, “dod intelligence interrogations, Guantanamo and Its Aftermath and international human rights law clinic, University of california, 2008). detainee debriefings, and tactical Questioning” (2008; revised october 2012), Enclosure 3, http://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf. 29 U.s. department of the Army, office of the surgeon general, Final Report: Assessment of Detainee Medical Operations for OEF, GTMO, and OIF (2005), http://www.globalsecurity.org/ 18 ibid. military/library/report/2005/detmedopsrpt_13apr2005.pdf [hereafter cited as surgeon 19 olc 2007. general report (2005)]. 20 Executive order no. 13491, “Ensuring lawful interrogations,” U.S. Code of Federal Regulations (22 30 Physicians for human rights, Broken Laws, Broken Lives (2008); Fletcher and stover, January 2009), title 3, http://www.whitehouse.gov/the_press_office/Ensuringlawfulinterrogations. The Guantanamo Effect (2009).

21 Admiral Patrick Walsh, U.s. department of defense, Review of Department Compliance 31 surgeon general report (2005). with President’s Executive Order on Detainee Conditions of Confinement (2009), 52, 32 Jane Mayer, The Dark Side, (2009), 142 [see note 2]. http://www.defense.gov/pubs/pdfs/review_of_department_compliance_with_presidents_ executive_ order_on_detainee_conditions_of_confinementa.pdf. nongovernmental 33 ibid., p 156. 220 | Ethics AbAndonEd Notes | 221

34 Alfred W. Mccoy, A Question of Torture: CIA Interrogation, From the Cold War to the War on Terror 48 ibid. (new York: Metropolitan books, 2006). 49 ibid. 35 central intelligence Agency, “background Paper on ciA’s combined Used of interrogation 50 ibid., 9. techniques” (2004), 1, http://www.aclu.org/torturefoia/released/082409/olcremand/2004olc97.pdf. “learned helplessness” was an apparent reference to the work of psychologist Martin 51 ibid. seligman, starting in the 1960s, concerning how the imposition of various forms of pain could lead to passivity in the face of the infliction of additional pain. in 2002 seligman briefed ciA 52 ibid., 11. and sErE personnel on the theory. Jane Mayer, The Dark Side (2009), 163–64 [see note 2]. 53 ibid., 14. 36 central intelligence Agency, office of Medical services, “oMs guidelines on Medical and 54 ibid., 1. Psychological support to detainee rendition, interrogation, and detention” (May 2004), http://www.aclu.org/torturefoia/released/103009/cia-olc/2.pdf; Alfred W. Mccoy, A Question 55 ibid., 18. of Torture (2006). 56 senate Armed services report (2008). 37 olc 2007, 6. 57 the studies on the medical and psychological impact of these techniques is summarized in 38 Alfred W. Mccoy, A Question of Torture (2006). Physicians for human rights and human rights First, Leave No Marks (2007) and k. Alexa koenig, Eric stover, and lauren E. Fletcher, “the cumulative Effect: A medico-legal approach 39 central intelligence Agency, kUbArk counterintelligence interrogation (1963), to United states torture law and policy,” Essex Human Rights Review 6, no. 1 (2009): 145–167. http://www.scribd.com/doc/487663/ciAkubarktorture-Manual and http://www.scribd.com/ regarding the scientific basis of ciA assessments, see vincent iacopino, scott Allen, and Allen doc/43673248/1963-ciA-kUbArk-interrogation-Manual-Part-2. keller, “bad science Used to support torture and human Experimentation,” Science 331 40 central intelligence Agency, human resource Exploitation training Manual (1983), (2011): 34–35. http://www.gwu.edu/~nsarchiv/nsAEbb/nsAEbb27/02-01.htm (excerpt); Alfred W. Mccoy, 58 Physicians for human rights and human rights First, Leave No Marks (2007); k. Alexa A Question of Torture (2006). koenig, Eric stover, and lauren E. Fletcher, “the cumulative Effect: A medico-legal approach 41 U.s. senate committee on Armed services, Inquiry into the Treatment of Detainees in U.S. to United states torture law and policy,” Essex Human Rights Review 6, no. 1 (2009): 145–167. Custody, 110th cong., 2d sess. (2008), http://www.armed-services.senate.gov/Publications/ 59 olc Zubaydah. detainee%20report%20Final_April%2022%202009.pdf [hereafter cited as senate Armed services report (2008)]. 60 ibid., 17. 42 U.s. department of the Army, headquarters, U.s. Army Medical command, otsg/MEdcoM 61 the close collaboration between the psychologists and the office of legal counsel is revealed Policy Memo 06-029, “behavioral science consultation Policy” (2006), http://archives.1wise. in the note accompanying the psychological assessment: “here is the psychological assessment. es/us-gitmo-bsct-policy-2006-2008.pdf. Please feel to call me at work or at home, whenever. thanks.” central intelligence Agency, office of legal counsel, Zubaydah psychological assessment (24 July 2002), 43 senate Armed services report (2008); Jane Mayer, The Dark Side (2009); katherine Eban, http://www.aclu.org/torturefoia/released/082409/olcremand/2004olc4.pdf. “rorschach and Awe,” Vanity Fair (online) (17 July 2007), http://www.vanityfair.com/politics/ features/2007/07/torture200707?printable=true¤tPage=all. 62 olc Zubaydah. 44 U.s. department of Justice, office of legal counsel, “Memorandum for John rizzo, Acting 63 ibid., 4. general counsel of the central intelligence Agency: interrogation of al Qaeda operative” (August 2002), http://www.fas.org/irp/agency/doj/olc/zubaydah.pdf [hereafter cited as olc 64 international committee of the red cross, ICRC Report on the Treatment of Fourteen “High Value Zubaydah]. Detainees” in CIA Custody (2007), 21–22, http://www.nybooks.com/media/doc/2010/04/22/icrc- report.pdf [hereafter cited as icrc report (2007)]. the detainees told the icrc that they could 45 the placement of an insect in a box was not employed and the technique does not appear in not identify the profession of the individuals but presumed they were physicians or psychologists. later lists of enhanced interrogation methods. 65 ibid., 21. 46 U.s. department of Justice, office of legal counsel, “Memorandum for John A. rizzo, senior deputy general counsel, central intelligence Agency, re: Application of 18 U.s.c. 66 ibid., 22. §§ 2340-2340A to certain techniques that May be Used in the interrogation of a high value 67 As the icrc noted in its report, the detainees have had no opportunity to communicate with al Qaeda detainee” (May 2005), 7, http://www.fas.org/irp/agency/doj/olc/techniques.pdf one another since being taken into custody, so the accounts could not have been coordinated. [hereafter cited as olc 2005]. 68 icrc report (2007), 22. 47 ibid., 8. 69 ibid., 21–22. 222 | Ethics AbAndonEd Notes | 223

70 icrc report (2007), 9, citing U.s. department of Justice, office of legal counsel, 78 central intelligence Agency, office of the inspector general, Appendix F to inspector “Memorandum for Alberto r. gonzales, counsel to the President, re: standards of conduct general report 2004 [see note 75], “draft office of Medical services guidelines on for interrogation under 18 U.s.c. §§ 2340–2340A,” (1 August 2002), http://fl1.findlaw.com/ Medical and Psychological support to detainee interrogations” (september 2003), 2, news.findlaw.com/wp/docs/doj/bybee80102mem.pdf (stating that “severe” means a level of http://graphics8.nytimes.com/ packages/pdf/politics/20090825-dEtAin/2004ciAig.pdf. pain associated with a serious physical condition or injury such as death, organ failure, or At least two versions of the guidelines were issued in 2004, one in May (http://www.aclu.org/ serious impairment of body function). Examples of acts the office of legal counsel considered torturefoia/released/103009/cia-olc/2.pdf) and one in december. the task Force does not “severe” included severe beatings with clubs and burning of prisoners. olc Zubaydah, 10. know how long the guidelines remained in effect. 71 the U.s. criminal statute on torture also contains a specific definition of severe mental pain 79 olc Zubaydah, 4. or suffering as “the prolonged mental harm caused by or resulting from—(A) the intentional 80 oMs guidelines (May 2004), Appendix A [see note 36]; olc 2005 [see note 46]. the infliction or threatened infliction of severe physical pain or suffering; (b) the administration or office of Medical services also collected data on the impact of some of the techniques used. application, or threatened administration or application, of mind-altering substances or other Physicians for human rights, procedures calculated to disrupt profoundly the senses or the personality; (c) the threat of Experiments in Torture: Evidence of Human Subject Research and (cambridge, MA: Physicians for human imminent death; or (d) the threat that another person will imminently be subjected to death, Experiments in the “Enhance” Interrogation Program rights, 2010), http://phrtorturepapers.org/. severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.” 81 oMs guidelines (May 2004). “definitions,” U.S. Code 18 (1994), § 2340. the Justice department argued in its opinions that the requirement of prolonged harm “result in significant psychological harm of significant 82 U.s. department of Justice, office of legal counsel, “Memorandum for John A. rizzo, senior duration,” and that none of the enhanced methods had such results, e.g., “lasting for months or deputy general counsel, central intelligence Agency, re: Application of 18 U.s.c. §§2340- even years.” U.s. department of Justice, office of legal counsel, “Memorandum for Alberto r. 2340A to the combined Use of certain techniques in the interrogation of high value al Qaeda gonzales, counsel to the President, re: standards of conduct for interrogation under 18 U.s.c. detainees” (May 2005), 62, http://www.fas.org/irp/agency/doj/olc/combined.pdf. §§ 2340–2340A,” (1 August 2002), http://fl1.findlaw.com/ news.findlaw.com/wp/docs/ 83 olc 2005 [see note 46]. doj/bybee80102mem.pdf. this reading of the statute conflicts with the specific enumeration of the four types of harm deemed by congress to result in such prolonged harm, as well the 84 olc 2007, 9 [see note 5]. legislative history of the law. see Physicians for human rights, Break Them Down (2009), 78–79. 85 ibid., 9, n. 9. 72 American Medical Association, “Principles of Medical Ethics viii” (chicago: American 86 leonard s. rubenstein and stephen n. xenakis, “roles of ciA Physicians in Enhanced Medical Association, 1957; revised 2001), http://www.ama-assn.org/ama/pub/physician- interrogation and torture of detainees,” JAMA 304, no. 5 (2010): 569–570. resources/medical-ethics/code-medical-ethics/principles-medical-ethics.page. the American college of Physicians specifically addressed the obligation somewhat differently: 87 olc 2005, 39. “Under no circumstances is it ethical for a physician to be used as an instrument of 88 ibid., 42. government for the purpose of weakening the physical or mental resistance of another human being.” “American college of Physicians Ethics Manual, third Edition,” Annals of 89 Jonathan beynon, “‘not waving, drowning’: Asphyxia and torture: the myth of simulated Internal Medicine 117, no. 11 (1 december 1992): 947–60, http://www.ncbi.nlm.nih.gov/ drowning and other forms of torture,” torture 22, suppl. no. 1 (2012): 25–29. pubmed/1443957. Although there may be ambiguity as to whether a detainee not under a physician’s care, e.g., a person to be interrogated, is a patient, the AMA and other medical 90 U.s. department of Justice, office of legal counsel, “Memorandum for John A. rizzo, senior associations’ ethical guidance regarding participation in interrogation makes no distinction deputy general counsel, central intelligence Agency, re: Application of 18 U.s.c. §§2340- with respect to the duty of beneficence. 2340A to the combined Use of certain techniques in the interrogation of high value al Qaeda detainees” (May 2005), 12, http://www.sfas.org/irp/agency/doj/olc/combined.pdf. 73 American Psychological Association, Ethical Principles of Psychologists and code of conduct, standard 3.04, “Avoiding harm” (2002), http://www.apa.org/ethics/code/index.aspx?item=6. 91 the chart is reproduced in rubenstein and xenakis, “roles of ciA Physicians in Enhanced interrogation and torture of detainees,” JAMA 304, no. 5 (2010): 569–570. 74 As stated earlier, we use the term medical personnel when the occupation of the individual, e.g., doctor, nurse, medic, is not specified. in cases where documents indicate that a physician 92 Physicians for human rights and human rights First, Leave No Marks (2007). or nurse was involved in a particular activity or provided an opinion to the department of 93 Physicians for human rights, Experiments in Torture (2010). Justice, we so indicate. 94 olc 2007, 5. 75 central intelligence Agency, office of the inspector general, Special Review: Counterterrorism Detention and Interrogation Activities (September 2001–October 2003) (7 May 2004), 1–2, 95 icrc report (2007), 26 [see note 64]. http://media.luxmedia.com/aclu/ig_report.pdf. 96 karen greenberg, The Least Worst Place: Guantanamo’s First 100 days (new York: oxford 76 ibid., 21, n. 26. University Press UsA, 2009), 150–158. 77 ibid. 97 ibid., 161. 224 | Ethics AbAndonEd Notes | 225

98 U.s. department of defense, directive 3115.13, “dod support to the high-value detainee 120 surgeon general report (2005), 19-7 [see note 29]. interrogation group” (2010), http://www.dtic.mil/whs/directives/corres/pdf/311513p.pdf. 121 ibid. 99 senate Armed services report (2008) [see note 41]. 122 U.s. department of defense, Joint task Force – guantanamo, headquarters, “camp delta 100 ibid. standard operating Procedures” (28 March 2003), 4.3, http://www.comw.org/warreport/ fulltext/gitmo-sop.pdf. 101 U.s. department of defense, JtF gtMo, “bsct standard operation Procedures” (11 november 2002), http://www.aclu.org/files/projects/foiasearch/pdf/doddon000760.pdf 123 neil lewis, “red cross Finds detainee Abuse in guantanamo,” New York Times (30 november (last document in packet). the composition of the bscts varied over time. in late 2004, a 2004), http://www.nytimes.com/2004/11/30/politics/30gitmo.html. Joint intelligence group memorandum specified that a bsct would be composed of two 124 M. gregg bloche and Jonathan h. Marks, “When doctors go to War,” clinical psychologists and a mental health specialist. U.s. department of defense, JtF gtMo, New England Journal of (2005): 3–6. “operational Policy Memorandum #14, behavioral science consultation team” (10 december Medicine 352, no. 1 2004), http://www.aclu.org/files/projects/foiasearch/pdf/doddon000760.pdf (second 125 U.s. department of defense, Assistant secretary of defense Memorandum, “Medical Program document in packet). Principles and Procedures for the Protection and treatment of detainees in the custody of the Armed Forces of the United states,” (3 June 2005), 102 senate Armed services report (2008), 52. http://www1.umn.edu/humanrts/oathbetrayed/Winkenwerder%206-3-2005.pdf. 103 ibid., 50. 126 U.s. department of defense, directive 3115.09, “dod intelligence interrogations, detainee 104 ibid., 51–52. debriefings, and tactical Questioning,” (november 2005), http://www1.umn.edu/humanrts/oathbetrayed/interrogation%20directive%203115.09.pdf. 105 ibid., 52, quoting Paul burney and [classified], Memorandum for the record, october 2, this directive was revised in 2008 (http://www.fas.org/irp/doddir/dod/d3115_09.pdf). 2002. 127 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee 106 ibid., 67–69. operations” (6 June 2006), http://www.dtic.mil/whs/directives/corres/pdf/231008p.pdf. 107 senate Armed services report (2008). 128 ibid. 108 U.s. department of defense, “JtF gtMo sErE interrogation standard operating Procedure” 129 ibid. (december 2002), http://www.torturingdemocracy.org/documents/20021210.pdf. 130 ibid. 109 ibid. 131 U.s. department of defense, Joint task Force – guantanamo, Memorandum for Maj. general 110 senate Armed services report (2008), 60. geoffrey d. Miller, “results of commander’s inquiry, re: Allegation of inhumane treatment of [redacted]” (30 April 2003), 1318–1322 and 1360–1364. 111 ibid., 74–83. 132 , 1 M.c. 334 (2008). 112 ibid. United States v. Jawad 133 declaration of darrel vandeveld in “Amended Petition for Writ of habeas corpus on behalf of 113 ibid., 81–82. Mohammed Jawad (also known as saki bacha),” in re: guantanamo bay detainee litigation, 114 ibid., 88. Al Hamandy v. Bush, no. 05-cv-2385 (rMU) (d.d.c. 2009), Exhibit b, para. 23.

115 ibid., 88–91. see also Philippe sands, Torture Team (2007). 134 senate Armed services report (2008), 140–141. the interrogation is described at pages 136–40 [see note 41]. 116 U.s. department of defense, sworn statement by [redacted], Ar 15-6 gtMo investigation (11 January 2005), http://www.dod.mil/pubs/foi/operation_and_plans/detainee/Exhibit_63_ 135 senate Armed services report (2008), 50. to_Ar15_6gtMo_investigation.pdf. 136 ibid., 57. 117 senate Armed services report (2008), 91. 137 larry c. James, Fixing Hell: An Army Psychologist Confronts Abu Ghraib (grand central 118 U.s. department of defense, sworn statement by [redacted], Ar 15-6 gtMo investigation Publishing, 2008), 29. (11 January 2005), http://www.dod.mil/pubs/foi/operation_and_plans/detainee/Exhibit_63_ 138 U.s. department of defense, office of the secretary of defense, Review of Defense Detention to_Ar15_6gtMo_investigation.pdf. Operations and Detainee Interrogation Techniques, by Admiral A.t. church (2006), 355, 119 Physicians for human rights, Break Them Down: The Use of Psychological Torture against http://www.aclu.org/files/pdfs/safefree/church_353365_20080430.pdf [hereafter cited as Detainees in US Custody (cambridge, MA: Physicians for human rights, 2005). (2006)]. Many of the extensive findings on medical care and medical involvement in interrogation in Admiral church’s report, which is the only internal report 226 | Ethics AbAndonEd Notes | 227

that extensively reviews the conduct of medical personnel regarding detainees, were redacted 156 surgeon general report (2005); Fletcher and stover, The Guantanamo Effect (2009); Major in the original publicly released version. subsequently, pages referring to medical care with general george r. Fay, “Ar 15-6 investigation of the Abu ghraib detention Facility and 205th fewer redactions were released. the surgeon general’s report, by contrast, was not redacted, Military intelligence brigade” (2004), 47, http://fl1.findlaw.com/news.findlaw.com/hdocs/ but it is based on a survey rather than an investigation. docs/dod/fay82504rpt.pdf. the notes that medical doctors at Abu ghraib claimed that “excellent” medical records were kept, but he could find no evidence of them. 139 surgeon general report (2005), 18-14 [see note 29]. 157 senate Armed services report (2008) [see note 41]. 140 U.s. department of the Army, headquarters, FM 2-22.3 (FM 34-52), Human Intelligence Collector Operations (september 2006), http://scip.cms-plus.com/files/resources/Arny- 158 lieutenant general ricardo s. sanchez, U.s. department of the Army, headquarters, human-intelligence-collector.pdf; U.s. department of defense, directive 3115.09, “dod combined Joint task Force seven, “Memorandum for commander, U.s. central command: intelligence interrogations, detainee debriefings, and tactical Questioning” (2008; revised cJtF-7 interrogation and counter-resistance Policy” (september 14, 2003), october 2012). http://www.aclu.org/files/FilesPdFs/september%20sanchez%20memo.pdf. 141 U.s. department of the Army, headquarters, U.s. Army Medical command, otsg/MEdcoM 159 Physicians for human rights, Broken Laws, Broken Lives (2008) [see note 28]. Policy Memo 13-027, “Us Army behavioral science consultation to detention operations, 160 lieutenant general ricardo s. sanchez, U.s. department of the Army, headquarters, intelligence interrogations, detainee debriefing, and tactical Questioning” (2009), 15; U.s. combined Joint task Force seven, “Memorandum for commander, U.s. central command: department of the Army, headquarters, U.s. Army Medical command, otsg/MEdcoM cJtF-7 interrogation and counter-resistance Policy” (14 september 2003), Policy Memo 13-027, “Us Army behavioral science consultation to detention operations, http://www.aclu.org/files/FilesPdFs/september%20sanchez%20memo.pdf. intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 16. 161 ibid. 142 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 7. 162 surgeon general report (2005). 143 ibid., 13. 163 church report (2006). 144 ibid. 164 U.s. department of defense, sworn statement by thomas Pappas, Ar 15-6 investigation th 145 ibid., 6. of the 800 Military Police brigade (8 February 2004), http://dspace.wrlc.org/doc/ bitstream/ 2041/64697/01359display.pdf; lieutenant general ricardo s. sanchez, U.s. 146 ibid., 13. department of the Army, “Memorandum for commander, U.s. central command: cJtF-7 interrogation and counter-resistance Policy” (14 september 2003); steven Miles, 147 U.s. department of defense, directive 3115.09, “dod intelligence interrogations, detainee Oath (2006), 59. debriefings, and tactical Questioning” (2008; revised october 2012). Betrayed 165 surgeon general report (2005), 1-4. 148 surgeon general report (2005) [see note 29]. 166 surgeon general report (2005), chap. 18. 149 surgeon general report (2005). 167 church report (2006), 358. 150 church report (2006), 354. 168 Physicians for human rights, (2008). 151 surgeon general report (2005). the survey included 1,182 currently deployed, previously Broken Laws, Broken Lives deployed, and to-be-deployed medical personnel from 180 units in Afghanistan, iraq, and at 169 A handful of members of behavioral science consultation teams were interviewed separately. guantanamo bay. of those surveyed, 993 were interviewed, 52.7% of whom were officers and 47% enlisted. seven individuals assigned to guantanamo bscts were interviewed, as were 170 surgeon general report (2005), 18-18, 18-21. Admiral church’s report found that the seven four in iraq. the team was led by Major general lester Martinez-lopez, then commanding medical personnel, including one physician, had not participated in interrogation except to general of the U.s. Army Medical research and Material command. conduct pre- and post-interrogation medical exams. 152 church report (2006), 354. 171 ibid., 18–22, n. 4. 153 surgeon general report (2005), 7-2. 172 Physicians for human rights, Broken Laws, Broken Lives (2008), 86. 154 U.s. department of the Army, headquarters, United states Army Medical department 173 Justine sharrock, Tortured: When Good Soldiers Do Bad Things (hoboken, nJ: John Wiley & center, Medical support to detainee operations, special text no. 4-02.46 (2005), 1-9, sons, inc., 2010). http://www.globalsecurity.org/military/library/policy/army/other/st4-02-46.pdf. 174 ibid., 116. 155 surgeon general report (2005), appendix; church report (2006), 354; steven Miles, Oath 175 karen greenberg, The Least Worst Place: Guantanamo’s First 100 days (new York: oxford Betrayed (2006), chap. 5 [see note 27]. University Press UsA, 2009). 228 | Ethics AbAndonEd Notes | 229

176 Fletcher and stover, The Guantanamo Effect (2009) [see note 1]; Physicians for human rights, 194 charlie savage, “Military identifies guantanamo detainee Who died,” New York Times Broken Laws, Broken Lives (2008). (11 september 2012), http://www.nytimes.com/2012/09/12/us/politics/detainee-who-died- at-guantanamo-had-release-blocked-by-court.html. see also “death at guantanamo bay,” 177 U.s. department of the Army, headquarters, United states Army Medical department center, Editorial, New York Times (16 september 2012), http://www.nytimes.com/2012/09/16/ Medical support to detainee operations, special text no. 4-02.46 (2005 and 2007). opinion/sunday/death-at-guantanamo-bay.html. 178 Admiral Patrick Walsh, U.s. department of defense, Review of Department Compliance with 195 Fletcher and stover, The Guantanamo Effect (2009) [see note 1]. President’s Executive Order on Detainee Conditions of Confinement (2009), 52. 196 Physicians for human rights, Broken Laws, Broken Lives (2008). 179 leonard s. rubenstein and george J. Annas, “Medical ethics at guantanamo bay detention center and in the Us military: a time for reform,” The Lancet 374 (2009): 353–355. 197 human rights Watch, Locked Up Alone (2008). 180 U.s. department of defense, “sEcrEt orcon interrogation log: detainee 063,” Time 198 center for constitutional rights, Current Conditions of Confinement at Guantanamo: Still in (3 March 2006), http://www.time.com/time/2006/log/log.pdf. Violation of the Law (new York: center for constitutional rights, 23 February 2009), http://ccrjustice.org/files/ccr_report_conditions_At_guantanamo.pdf. 181 Adam Zagorin and Michael duffy, “inside the interrogation of detainee 063,” Time (20 June 2005), http://www.time.com/time/magazine/article/0,9171,1071284,00.html. 199 human rights Watch, Locked Up Alone (2008). 182 U.s. department of defense, office of inspector general, “investigation of Allegations of the 200 Admiral Patrick Walsh, U.s. department of defense, Review of Department Compliance with Use of Mind-Altering drugs to Facilitate interrogation of detainees” (september 2009), President’s Executive Order on Detainee Conditions of Confinement (2009), 52. http://www.thetorturedatabase.org/files/foia_subsite/dod_ig_report_mind-altering_drugs.pdf. see also Jeffrey kaye and Jason leopold, “dod report reveals some detainees interrogated 201 leonard s. rubenstein and george J. Annas, “Medical ethics at guantanamo bay detention While drugged, others ‘chemically restrained,’” Truthout (11 July 2012), http://truthout.org center and in the Us military: a time for reform,” The Lancet 374 (2009): 353–355. /news/item/10248-exclusive-department-of-defense-declassifies-report-on-alleged-drugging- 202 vincent iacopino and stephen n. xenaki, “neglect of Medical Evidence of torture in of-detainees. guantanamo bay: a case series,” PLoS Medicine 8, no. 4 (2011), 183 Physicians for human rights, Broken Laws, Broken Lives (2008). http://www.plosmedicine.org/article/info%3Adoi%2F10.1371%2Fjournal.pmed.1001027. 203 see also Physicians for human rights, (2008). 184 U.s. department of defense, office of inspector general, “investigation of Allegations of the Broken Laws, Broken Lives Use of Mind-Altering drugs to Facilitate interrogation of detainees” (september 2009). 204 carlotta gall, “threats and responses: captives; tales of despair from guantanamo,” New York Times (17 June 2003), http://www.nytimes.com/2003/06/17/world/threats-and- 185 Washington v. Harper, 494 U.s. 210 (1990). responses-captives-tales-of-despair-from-guantanamo.html?pagewanted=all&src=pm. 186 U.s. department of defense, office of inspector general, “investigation of Allegations of the 205 Affidavit of Emily keram, Al-oshan v. obama, cA 05—520 (rMU) (d.d.c. 2 november 2009). Use of Mind-Altering drugs to Facilitate interrogation of detainees” (september 2009). 206 Paisley dodds, “Mass suicide Attempts at gitmo,” Associated Press (11 February 2009), 187 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee http://www.cbsnews.com/stories/2004/11/30/terror/main658327.shtml. operations” (6 June 2006), paragraph 4.7.2. 207 Moazzam begg, Enemy Combatant: My Imprisonment at Guantanamo, Bagram, and Kandahar 188 human rights Watch, Locked Up Alone: Detention Conditions and Mental Health at Guantanamo (2006; repr., london: simon & schuster Uk ltd, 2007), 245. (new York: human rights Watch, 2008); Physicians for human rights and human rights First, Leave No Marks: Enhanced Interrogation and the Risk of Criminality (Physicians for 208 Physicians for human rights, Broken Laws, Broken Lives (2008). human rights and human rights First, 2007). 209 declaration of bruce E. vargo, Zuhair v. Obama, civ. no. 08-cv-0864 (Egs) (d.d.c. 16 189 letter from t.J. harrington, deputy Assistant director, counterterrorism division, Federal bureau March 2009), http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/ of investigation, to Major general donald J. ryder, department of the Army, criminal investigation testimonies/testimonies-of-the-defense-department/zuhair%20_v_obama_vargo_decl_ command (14 July 2004), http://www.aclu.org/torturefoia/released/Fbi_4622_4624.pdf. 20090316.pdf. colonel vargo was commander of all detention operations at guantanamo bay.

190 human rights Watch, Locked Up Alone (2008), 24–25, 36–37, 40. 210 human rights Watch, Locked Up Alone (2008), 30 [see note 188]. 191 Paisley dodds, “Mass suicide Attempts at gitmo,” Associated Press (11 February 2009), 211 ibid., 35. http://www.cbsnews.com/stories/2004/11/30/terror/main658327.shtml. 212 neil lewis, “red cross Finds detainee Abuse in guantanamo,” New York Times (30 november 192 neil lewis, “red cross Finds detainee Abuse in guantanamo,” New York Times (30 november 2004). 2004). 193 scott horton, “the guantanamo ‘suicides’: A camp delta sergeant blows the whistle,” Harper’s 213 the 2005 and 2007 medical guidelines do not specifically address the use of sedatives Magazine (March 2010), http://harpers.org/archive/2010/03/the-guantanamo-suicides/. for non-therapeutic reasons, but imply their availability. U.s. department of the Army, 230 | Ethics AbAndonEd Notes | 231

headquarters, United states Army Medical department center, Medical support to detainee 224 church report (2006), 354–55 [see note 138]. operations, special text no. 4-02.46 (2005 and 2007). 225 surgeon general report (2005), 14-1, 14-2. 214 U.s. department of defense, office of inspector general, “investigation of Allegations of the Use 226 surgeon general report (2005), chap. 20. there exist documented instances where of Mind-Altering drugs to Facilitate interrogation of detainees” (september 2009). see also physicians did not inquire into the injuries a detainee received or did not seek to learn the Jeffrey kaye and Jason leopold, “dod report reveals some detainees interrogated While source of the injury. there are a few exceptional cases where a physician did report abuse drugged, others ‘chemically restrained,’” Truthout (11 July 2012), http://truth-out.org/news/item/ appropriately; see steven Miles, (2006), 122–124 [see note 27]. 10248-exclusive-department-of-defense-declassifies-report-on-alleged-drugging-of-detainees. Oath Betrayed 227 surgeon general report (2005). the 2005 and 2007 medical guidelines state that health care personnel should only use restraints for medical purposes. U.s. department of the Army, headquarters, United states 228 church report (2006), 359. Army Medical department center, Medical support to detainee operations, special text no. 4-02.46 (2005), 3-7. in light of the inspector general finding, however, this rule does not 229 Major general george r. Fay, “Ar 15-6 investigation of the Abu ghraib detention Facility and appear to apply to chemical restraints. 205th Military intelligence brigade” (2004), 80, http://fl1.findlaw.com/news.findlaw.com/ hdocs/docs/dod/fay82504rpt.pdf. 215 American Medical Association, code of Medical Ethics, E-2.065, “court-initiated Medical treatments in criminal cases,” (1998), http://www.ama-assn.org/resources/doc/PolicyFinder/ 230 ibid., 355–56. policyfiles/hnE/E-2.065.htM. 231 ibid. 216 national commission for correctional health care, standards for health services in Prisons 232 steven Miles, Oath Betrayed (2006), 73–74. 2003, P-i-02, “Emergency Psychotropic Medication.” 233 scott Allen and others, “deaths of detainees in custody of Us Forces in iraq and Afghanistan 217 remington nevin, “Mass administration of the antimalarial drug mefloquine to guantanamo from 2002–2005,” MedGenMed 8, no. 4 (2006): 46. detainees: a critical analysis,” Tropical Med & International Health (12 August 2012), http://www.ncbi.nlm.nih.gov/pubmed/22882560; leopold and kaye, “controversial drug 234 steven Miles and Andrea smith, “United states defense department reporting of War-on- given to All detainees Akin to ‘Pharmocological Waterboarding,’” Truthout (1 december terror Prisoner deaths,” (unpublished paper, no date). 2010), http://www.truth-out.org/news/item/253:exclusive-controversial-drug-given-to-all- guantanamo-detainees-akin-to-pharmacologic-waterboarding; Mark denbaux and others, 235 U.s. department of Justice, office of legal counsel, “Memorandum for John A. rizzo, Drug Abuse: An exploration of the government’s use of mefloquine at Guantanamo (newark, nJ: senior deputy general counsel, central intelligence Agency, re: Application of 18 U.s.c. seton hall University school of law center for Policy and research, 2010), §§2340-2340A to the combined Use of certain techniques in the interrogation of high value http://law.shu.edu/Programscenters/Publicintgovserv/policyresearch/upload/drug-abuse- al Qaeda detainees” (May 2005), http://www.fas.org/irp/agency/doj/olc/combined.pdf. exploration-government-use-mefloquine-gunatanamo.pdf. 236 icrc report (2007), 7 [see note 64]. 218 the task Force has no information about whether any reports of abuse were submitted by 237 ibid., 10. medical personnel at the ciA, whether any such reports were investigated, and if they were investigated, whether any disciplinary action was taken. 238 ibid., 13.

219 central intelligence Agency, office of the inspector general, Special Review: Counterterrorism 239 Zubaydah v. Lithuania, Eur. ct. h.r. (27 october 2011), para. 153, Detention and Interrogation Activities (September 2001–October 2003) (7 May 2004), http://www.interights.org/document/181/index.html. http://media.luxmedia.com/aclu/ig_report.pdf. 240 icrc report (2007), 13. 220 Justine sharrock, Tortured: When Good Soldiers Do Bad Things (2010) [see note 173]; 241 some of these accounts are collected in human rights Watch, Locked Up Alone (2008) Joshua E. s. Phillips, “inside the detainee Abuse task Force,” The Nation (13 May 2011), [see note 188]. http://www.thenation.com/article/160560/inside-detainee-abuse-task-force. 242 Physicians for human rights, Broken Laws, Broken Lives (2008) [see note 28]. 221 U.s. department of defense, directive 5100.77, “dod law of War Program” (1998), http://biotech.law.lsu.edu/blaw/dodd/corres/pdf2/d510077p.pdf; U.s. department of 243 ibid., 89. defense, directive 3115.09, “dod intelligence interrogations, detainee debriefings, and tactical Questioning” (november 2005), http://www1.umn.edu/humanrts/oathbetrayed/ 244 Fletcher and stover, The Guantanamo Effect (2009) [see note 1]. interrogation%20directive%203115.09.pdf. this directive was revised in 2008 245 human rights Watch, Locked Up Alone (2008). (http://www.fas.org/irp/doddir/dod/d3115_09.pdf). 246 Fletcher and stover, The Guantanamo Effect (2009). 222 surgeon general report (2005), chap. 17 [see note 29]. 247 Physicians for human rights, Broken Laws, Broken Lives (2008). 223 surgeon general report (2005), chaps. 14–16. 232 | Ethics AbAndonEd Notes | 233 chAPtEr 2 11 ibid. 12 U.s. department of the Army, headquarters, United states Army Medical department center, 1 robert Jay lifton, “doctors and torture,” New England Journal of Medicine 351 (2004): 415–416; Medical support to detainee operations, special text no. 4-02.46 (2007), 1-9 and following. brewer and Arrigo, “Places that Medical Ethics can’t Find” and Jonathan Marks, “looking back, thinking Ahead: the complicity of health Professionals in detainee Abuse,” in 13 central intelligence Agency, office of Medical services, “oMs guidelines on Medical and Interrogation, Forced Feedings and the Role of Health Professionals, ed. goodman and roseman Psychological support to detainee rendition, interrogation and detention” (May 2004), (2009); kelman and hamilton, Crimes of Obedience (1990); Philip Zimbardo, The Lucifer Effect http://www.aclu.org/torturefoia/released/103009/cia-olc/2.pdf. (2007); stanley Milgram, “behavioral study of obedience,” Journal of Abnormal and Social 14 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee Psychology 67, no. 4 (1963): 371–378; thomas beam, “Medical Ethics on the battlefield: the operations” (6 June 2006). crucible of Military Medical Ethics” in U.s. department of the Army, office of the surgeon general, Military Medical Ethics, vol. 2 (2003). 15 M. gregg bloche and Jonathan h. Marks, “When doctors go to War,” New England Journal of Medicine 352, no. 1 (2005): 3–6. 2 Un general Assembly, resolution 37/194, “Principles of Medical Ethics relevant to the role of health Personnel, particularly Physicians, in the Protection of Prisoners and detainees against 16 leonard rubenstein and others, “coercive Us interrogation: A challenge to Medical Ethics,” torture and other cruel, inhuman or degrading treatment or Punishment” (18 december JAMA 294, no.12 (2005): 1544–1549. 1982), http://www.un.org/documents/ga/res/37/a37r194.htm. 17 A side-by-side comparison of the language is contained in table A of leonard rubenstein and 3 sessums and others, “Ethical Practice Under Fire: deployed Physicians in the global War others, “coercive Us interrogation: A challenge to Medical Ethics,” JAMA 294, no.12 (2005): on terrorism,” Military Medicine 174, no 5. (2009): 441–447; lieutenant general ronald 1544–1549. blanck, U.s. Army surgeon general (ret), personal communication cited in thomas E. beam 18 Jordan J. cohen, sylvia cruess, and christopher davidson, “Alliance between society and and Edmund g. howe, “A Proposed Ethic for Military Medicine” in U.s. department of the Medicine: the Public’s stake in Medical Professionalism,” JAMA 298, no. 6 (2007): 760–77; Army, office of the surgeon general, Military Medical Ethics, vol. 2 (2003). see also World M. gregg bloche and Jonathan h. Marks, “When doctors go to War,” New England Journal of Medical Association, WMA Regulations in Times of Armed Conflict and Other Situations of Violence Medicine 352, no. 1 (2005): 3–6; george J. Annas, “Military Medical Ethics – Physician First, (1956; revised bangkok: WMA general Assembly, october 2012), http://www.wma.net/en last, Always,” New England Journal of Medicine 359 (2008):1087–1090. /30publications/10policies/a20/index.html; Physicians for human rights and University of cape town health sciences centre, dual loyalty and human rights in health Professional Practice: 19 World Medical Association, Declaration of Tokyo (1975; revised May 2006). Proposed guidelines and institutional Mechanisms (March 2003), http://physiciansforhumanrights.org/library/reports/dual-loyalty-and-human-rights-2003.html; 20 “American college of Physicians Ethics Manual, Fifth Edition,” Annals of Internal Medicine 142, national commission on correctional health care, Position statement, “correctional health no. 7 (2005): 560–582, http://annals.org/article.aspx?articleid=718312. care Professionals’ response to inmate Abuse” (2007), http://www.ncchc.org/correctional- 21 American Psychiatric Association, Position statement, “Psychiatric Participation in health-care-professionals%E2%80%99-response-to-inmate-abuse. interrogation of detainees” (2006), http://www.psychiatry.org/File%20library/Advocacy%20 4 Un general Assembly, resolution 37/194, “Principles of Medical Ethics” (1982), Principle 5. and%20newsroom/Position%20statements/ps2006_interrogation.pdf. 5 ibid., Principle 2. 22 Paul s. Appelbaum, “coping With the Ethical conundra of Forensic Psychiatry: A tribute to howard Zonana, Md,” Journal of the American Academy of Psychiatry and the law 38 (2010): 6 World Medical Association, Declaration of Tokyo (1975; revised May 2006), 551–558. www.wma.net/en/30publications/10policies/c18/index.html. 23 ibid. 7 “Against torture: Joint resolution of the American Psychiatric Association and the American Psychological Association” (Washington, dc: American Psychological Association, 1985), 24 American Medical Association, code of Medical Ethics, opinion 2.068, “Physician http://www.apa.org/news/press/statements/joint-resolution-against-torture.pdf. Participation in interrogation,” (2006), http://www.ama-assn.org/ama/pub/physician- resources/medical-ethics/code-medical-ethics/opinion2068.page. 8 “American college of Physicians Ethics Manual, third Edition,” Annals of Internal Medicine 117, no. 11 (1 december 1992): 947–960, http://www.ncbi.nlm.nih.gov/pubmed/1443957; American 25 Frederick E. turton and lois snyder, “revision to the American college of Physicians’ Ethics college of Physicians, “the role of the Physician and the Medical Profession in the Prevention Manual,” Annals of internal Medicine 148, no. 11 (2008): 887–888, http://www.acponline.org/ of international torture and in the treatment of its survivors,” Annals of Internal Medicine 122, running_practice/ethics/manual/physician_participation.pdf. no. 8 (1995): 607–613. 26 American Medical Association, code of Medical Ethics, opinion 1.02, “the relation of law 9 American Medical Association, code of Medical Ethics, opinion 2.067, “torture” (1999). and Ethics,” (issued prior to April 1977), http://www.ama-assn.org/ama/pub/physician- resources/medical-ethics/code-medical-ethics/opinion102.page. 10 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee operations” (6 June 2006), http://www.dtic.mil/whs/directives/corres/pdf/231008p.pdf. 27 American Psychological Association, Report of American Psychological Association Presidential Task Force on Psychological Ethics and National Security (Washington, dc: American 234 | Ethics AbAndonEd Notes | 235

Psychological Association, June 2005), http://www.apa.org/pubs/info/reports/pens.pdf 39 U.s. department of the Army, headquarters, U.s. Army Medical command, otsg/MEdcoM [henceforth cited as PEns report (2005)]. Policy Memo 13-027, “Us Army behavioral science consultation to detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 11; U.s. 28 stephen soldz, “closing Eyes to Atrocities: U.s. Psychologists, detainee interrogations, and the department of the Army, headquarters, U.s. Army Medical command, otsg/MEdcoM response of the American Psychological Association” in Interrogation, Forced Feedings and the Policy Memo 09-053, “Us Army behavioral science consultation to detention operations, Role of Health Professionals, ed. ryan goodman and Mindy roseman (cambridge, MA: human intelligence interrogations, detainee debriefing, and tactical Questioning,” (2009), 11, rights Program, harvard law school, 2009); kenneth s. Pope, “Psychologists and detainee http://www.ethicalpsychology.org/materials/U.s_Army_behavioral_ science_consultation_ interrogations: key decisions, opportunities lost, and lessons learned,” Annual Review of team_Policy_2008.pdf. Clinical Psychology 7 (2011): 16.1–16.23. 40 American Psychological Association, Specialty Guidelines for Forensic Psychology (Washington, 29 leonard s. rubenstein, “complicity and the illusion of beneficence” in Interrogation, Forced dc: American Psychological Association, 3 August 2011), http://www.ap-ls.org/aboutpsychlaw/ Feedings and the Role of Health Professionals, ed. goodman and roseman (2009). sgFP_Final_Approved_2011.pdf. 30 American Psychological Association, Ethical Principles of Psychologists and code of conduct, 41 ibid., sec. 6.03. standard 3.04, “Avoiding harm” (2002), http://www.apa.org/ethics/code/index.aspx?item=6. 42 in its 2012 bsct guidance, the U.s. Army states that where bscts conduct evaluations of 31 this was based on APA Ethical standard 1.02. PEns report (2005), 5. in 2010, the standard detainees through interviews or psychometric tests, they must disclose that the assessments are allowing deference to law was changed to state that under no circumstances was deference to not for medical purposes. otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science law a grounds for violating human rights. see http://www.apa.org/news/press/releases/2010/ consultation to detention operations, intelligence interrogations, detainee debriefing, and 02/ethics-code.aspx. tactical Questioning,” (2012), 9, 14. in a major deviation from the requirements of the American 32 PEns report (2005), 2. Psychological Association’s forensic standards, however, the purpose, nature, and anticipated use of the results of the examination are not disclosed. 33 stephen soldz, “closing Eyes to Atrocities: U.s. Psychologists, detainee interrogations, and the response of the American Psychological Association” in Interrogation, Forced Feedings and the 43 American Psychological Association, Specialty Guidelines for Forensic Psychology (2011), sec. 1.03. Role of Health Professionals, ed. ryan goodman and Mindy roseman (cambridge, MA: human 44 ibid., sec. 6.03.04. rights Program, harvard law school, 2009); kenneth s. Pope, “Psychologists and detainee interrogations: key decisions, opportunities lost, and lessons learned,” Annual Review of 45 PEns report (2005) [see note 27]. Clinical Psychology 7 (2011): 16.1–16.23. 46 American Psychological Association, Specialty Guidelines for Forensic Psychology (2011), sec. 1.03. 34 American Psychological Association, “Amendment to the reaffirmation of the American 47 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee Psychological Association Position Against torture and other cruel, inhuman, or degrading operations” (6 June 2006). treatment or Punishment and its Application to individuals defined in the as ‘Enemy combatants’” (2 February 2008), http://www.apa.org/ethics/programs/statement/ 48 otsg/MEdcoM Policy Memo 09-053, “Us Army behavioral science consultation to torture-code.aspx. the membership of the American Psychological Association also passed a detention operations, intelligence interrogations, detainee debriefing, and tactical referendum prohibiting psychologists to work in any detention facility where violations of the Questioning,” (2009), 18; otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral convention Against torture, the geneva conventions, or the U.s. constitution are taking place science consultation to detention operations, intelligence interrogations, detainee (American Psychological Association council of representatives Meeting, Feb 20-22, 2009, debriefing, and tactical Questioning,” (2012), 19. http://www.AmericanPsychologicalAssociation.org/about/governance/ council/09feb- crminutes.aspx). 49 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to detention operations, intelligence interrogations, detainee debriefing, and tactical 35 American Psychological Association, “2008 APA Petition resolution ballot,” Questioning,” (2012), 19; otsg/MEdcoM Policy Memo 09-053, “Us Army behavioral http://www.apa.org/news/press/statements/work-settings.aspx. science consultation to detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2009), 18. 36 richard knox, “Psychiatrists Protest Pentagon interrogations,” National Public Radio (26 september 2008), http://wap.npr.org/story/95068929. 50 otsg/MEdcoM Policy Memo 09-053, “Us Army behavioral science consultation to detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2009), 26. 37 U.s. department of the Army, headquarters, United states Army Medical department center, Medical support to detainee operations, special text no. 4-02.46 (2005), 1-11, 51 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to detention http://www.globalsecurity.org/military/library/policy/army/other/st4-02-46.pdf. operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 28. 38 American Academy of Psychiatry and the law, “Ethics guidelines for the Practice of Forensic 52 American Medical Association, code of Medical Ethics, opinion 2.068, “Physician Psychiatry” (bloomberg, ct: American Academy of Psychiatry and the law, May 2005), Participation in interrogation,” (2006). the surgeon general’s claim about the American http://www.aapl.org/ethics.htm. Medical Association’s position is based on a background paper to the policy, which is not part of 236 | Ethics AbAndonEd Notes | 237

the ethical code that was subject to a vote, and indeed the association states that the report is 65 british Medical Association, The Medical Profession and Human Rights: Handbook for a Changing not to be cited or referenced without permission. Agenda (london: Zed books, 2001), 72–76. 53 American Medical Association, report of the council on Ethical and Judicial Affairs, “cEJA 66 PEns report (2005), 2 [see note 27]. report 10-A-06: Physician Participation in interrogation” (chicago: American Medical 67 larry c. James, (2008). Association, 2006), http://www.ama-assn.org/resources/doc/code-medical-ethics/2068a.pdf. Fixing Hell 68 World Medical Association, (1975; revised May 2006). 54 PEns report (2005) [see note 27]. Page 2 states: Declaration of Tokyo As a context for its statements, the PENS Task Force affirmed that when psychologists serve in any 69 ibid. position by virtue of their training, experience, and expertise as psychologists, the APA Ethics Code applies that “The Task Force thus rejects the contention that when psychologists act in certain roles 70 American Medical Association, code of Medical Ethics, opinion 5.05, “confidentiality” (1983). outside traditional health-service provider relationships, for example as consultants to interrogations, 71 American Psychological Association, Ethical Principles of Psychologists and code of conduct, they are not acting in a professional capacity as psychologists and are therefore not bound by the APA standard 4.02(a), “discussing the limits of confidentiality” (2002). the American Ethical Principles of Psychologists. Psychological Association’s Presidential task Force on Psychological Ethics and national 55 otsg/MEdcoM Policy Memo 09-053, “Us Army behavioral science consultation to detention security, which approved a role for psychologists in national security interrogation, mentions operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2009), 18; standard 4.02 but fails to address the requirement of disclosure of potential uses of the otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to detention information to the detainee. operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 20. 72 Peter slevin and Joe stephens, “detainees’ medical files shared,” Washington Post (10 June 56 otsg/MEdcoM Policy Memo 09-053, “Us Army behavioral science consultation to detention 2004); neil lewis, “red cross Finds detainee Abuse at guantanamo,” New York Times operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2009), 20; (30 november 2004), http://www.nytimes.com/2004/11/30/politics/30gitmo.html, citing otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to detention international committee of the red cross, ICRC Report on the Treatment of Fourteen “High Value operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 21. Detainees” in CIA Custody (2007); steven h. Miles, Oath Betrayed: Torture, Medical Complicity, and the War on Terror (new York: random house, 2006), 54-55. 57 compare the following two sources: Un general Assembly, resolution 37/194, “Principles of Medical Ethics” (1982); U.s. department of defense, instruction 2310.08E, “Medical Program 73 U.s. department of defense, United states southern command, “Policy Memorandum 8-02: support for detainee operations” (6 June 2006). U.s. southern command confidentiality Policy between health care Providers and Enemy Persons Under U.s. control, detained in conjunction with operation EndUring FrEEdoM” 58 oMs guidelines (May 2004), 10 [see note 13]. the task Force finds a redaction in a statement (6 August 2002), http://dspace.wrlc.org/doc/bitstream/2041/63600/00361display.pdf. of an ethical responsibility, watered down as it may be, additionally troubling. 74 U.s. department of defense, JtF gtMo, “bsct standard operation Procedures” (11 november 59 “definitions,” U.S. Code 18 (1994), § 2340A. 2002), http://www.americantorture.com/documents/gitmo/05.pdf.

60 oMs guidelines (May 2004), 9, n2. 75 larry c. James, Fixing Hell (2008), 56–57. James states that he reformed the process to prevent 61 leonard s. rubenstein, “Physicians and Psychologists as Enablers of torture” in Terrorism and interrogators from gaining access to medical records, but concedes that behavioral science Public Health: A Balanced Approach to Strengthening Systems and Protecting People, ed. barry s. consultants had access to detainee medical information and could discuss the information with levy and victor W. sidel (new York: oxford University Press UsA, 2011); leonard s. the medical staff. he further claimed that the purpose of behavioral science consultant access rubenstein, “complicity and the illusion of beneficence” in Interrogation, Forced Feedings and to medical records was solely to ensure “that no detainee would ever be harmed.” ibid., 58. the Role of Health Professionals, ed. goodman and roseman (2009) [see note 28]. this claim, however, is inconsistent with dod policies on the role of the behavioral science consultants, who are expected to identify detainee vulnerabilities. 62 leonard s. rubenstein, “Physicians and Psychologists as Enablers of torture” in Terrorism and Public Health (2011); Physicians for human rights, Experiments in Torture: Evidence of Human 76 U.s. department of the Army, office of the surgeon general, Final Report: Assessment of Detainee Subject Research and Experiments in the “Enhance” Interrogation Program (cambridge, MA: Medical Operations for OEF, GTMO, and OIF (2005), sec. 18-13, http://www.globalsecurity.org/ Physicians for human rights, 2010), http://phrtorturepapers.org/; leonard rubenstein and military/library/report/2005/detmedopsrpt_13apr2005.pdf [hereafter cited as surgeon general stephen xenakis, “roles of ciA Physicians in Enhanced interrogation and torture of report (2005)]. detainees,” JAMA 304, no. 5 (2010): 569-570. 77 surgeon general report (2005), 7-5.

63 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to 78 U.s. department of defense, office of the secretary of defense, Review of Defense Detention detention operations, intelligence interrogations, detainee debriefing, and tactical Operations and Detainee Interrogation Techniques, by Admiral A.t. church (2006), 359, Questioning,” (2012); larry c. James, Fixing Hell: An Army Psychologist Confronts Abu Ghraib http://www.aclu.org/images/torture/asset_upload_file625_26068.pdf (redacted version) and (grand central Publishing, 2008). http://www.aclu.org/files/pdfs/safefree/church_353365_20080430.pdf (pages that were 64 oMs guidelines (May 2004). originally redacted). 238 | Ethics AbAndonEd Notes | 239

79 behavioral science consultation team, Joint intelligence group, Joint task Force – 93 ibid., 8. guantanamo, standard operating Procedures (2005), http://www.aclu.org/files/projects/ 94 ibid., 9. foiasearch/pdf/doddon000760.pdf. 95 ibid. 80 ibid., Annex c. 96 ibid., 10. 81 ibid. 97 U.s. department of defense, directive 3115.09, “dod intelligence interrogations, detainee 82 U.s. department of the Army, headquarters, United states Army Medical department center, debriefings, and tactical Questioning,” (2008; revised october 2012), Enclosure 3, Medical support to detainee operations, special text no. 4-02.46 (2005), 1-11, 1-12; surgeon http://www.dtic.mil/whs/directives/corres/pdf/311509p.pdf. general report (2005), 1-9; Matthew k. Wynia, “breaching confidentiality to protect the public: evolving standards of medical confidentiality for military detainees,” American Journal 98 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to of Bioethics 7, no. 8 (2007):1–5. detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 23. 83 U.s. department of the Army, headquarters, United states Army Medical department center, Medical support to detainee operations, special text no. 4-02.46 (2005), 1-11, 1-12. the first 99 ibid., 8. reference to keeping interrogation “safe, legal, ethical, and effective” the task Force is aware of 100 the requirement for reporting violations of the law of war in effect after 9/11 derived from was from a memorandum on bsct responsibilities in december 2004. U.s. department of the dod law of War Program. U.s. department of defense, directive 5100.77, “dod law of defense, JtF gtMo, “operational Policy Memorandum #14, behavioral science consultation War Program” (1998), http://biotech.law.lsu.edu/blaw/dodd/corres/pdf2/d510077p.pdf. team” (10 december 2004), http://upload.wikimedia.org/wikipedia/ commons/1/14/bsct_ standard_operating_Procedures_—_2002-11-11.pdf (starting at page 3). the phrase is 101 surgeon general report (2005), 16-2 [see note 77], citing U.s. department of defense, repeated in subsequent bsct standard operating procedures. directive 5100.77, “dod law of War Program” (1998). directive 5100.77 was superseded by directive 2311.01E (http://www.dtic.mil/whs/directives/corres/pdf/231101e.pdf). 84 ibid., 1-11. 102 office of the United nations high commissioner For human rights, 85 the policies are reflected in the detailed medical guidance regarding health care for detainees. Manual on the it states that only health care personnel charged with assistance in the interrogation process, Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading (new York and geneva: United nations, 2004), including “interpretation of medical records and information,” are not to be involved in health Treatment or Punishment (Istanbul Protocol) http://www.unhcr.org/refworld/docid/4638aca62.html; vincent iacopino, onder ozkalipci, and care services. in other words, the bscts are permitted to review medical records and share caroline schlar, “the istanbul Protocol: international standards for the effective investigation information from them with interrogators. U.s. department of the Army, headquarters, United and documentation of torture and cruel, inhuman, or degrading treatment,” the lancet 354, states Army Medical department center, Medical support to detainee operations, special no. 1117 (1993). text no. 4-02.46 (2007), 1-12. 103 U.s. department of defense, Army regulation 15-6: Final report, investigation into Fbi 86 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee Allegations of detainee Abuse at guantanamo bay, cuba detention Facility (April 2005), operations” (6 June 2006). http://www.defense.gov/news/Jul2005/d20050714report.pdf. 87 ibid. 104 surgeon general report (2005), 16-2. th cong. 88 Health Insurance Portability and Accountability Act of 1996, Public law 191, 104 105 ibid. (21 August 1996), § 512(k)(2). 106 surgeon general report (2005), 16-15. the manual was written in 2001 and is available at 89 Admiral Patrick Walsh, U.s. department of defense, Review of Department Compliance with https://s3.amazonaws.com/Phr_reports/examining-asylum-seekers-manual.pdf. President’s Executive Order on Detainee Conditions of Confinement (2009), http://www.defense.gov/ pubs/pdfs/review_of_department_compliance_with_presidents_executive_order_on_detainee 107 U.s. department of defense, United states southern command, “UssoUthcoM _conditions_of_confinementa.pdf. Policy on health care delivery to Enemy Persons Under U.s. control at Us naval base guantanamo bay, cuba” (9 August 2004), para. 10a, http://dspace.wrlc.org/doc/bitstream/ 90 otsg/MEdcoM Policy Memo 09-053, “Us Army behavioral science consultation to 2041/66357/02539display.pdf. detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2009). 108 U.s. department of defense, detention hospital, guantanamo bay, cuba, “soP no: 007 Medical documentation and reporting Procedure for suspected detainee Abuse” (February 91 ibid., 28. 2005, revised June 2005), http://dspace.wrlc.org/doc/bitstream/2041/66769/02951display.pdf. 92 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to the task Force is not aware whether this soP is still in place or has been revised or rescinded. detention operations, intelligence interrogations, detainee debriefing, and tactical 109 U.s. department of defense, Assistant secretary of defense for health Affairs, hA Policy 05- Questioning,” (2012), 10. 006, “Medical Program Principles and Procedures for the Protection and treatment of 240 | Ethics AbAndonEd Notes | 241

detainees in the custody of the Armed Forces of the United states” (3 June 2005), 125 the national Practitioner data bank was established by congress to improve the quality of Procedures, para. 4. health care by encouraging state licensing boards, hospitals, professional societies, and other health care organizations to identify and discipline those who engage in unprofessional 110 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee behavior, to report medical malpractice payments, and to restrict the ability of incompetent operations” (6 June 2006). physicians, dentists, and other health care practitioners to move from state to state without 111 U.s. department of defense, Assistant secretary of defense for health Affairs, hA Policy disclosure or discovery of previous medical malpractice payment and adverse action history. 05-19 (13 october 2005). see http://www.npdb-hipdb.hrsa.gov/topnavigation/aboutUs.jsp. 112 U.s. department of the Army, headquarters, United states Army Medical department center, 126 the purpose of ccQAs is to collect, track, and report required provider data for dod Medical support to detainee operations, special text no. 4-02.46 (2005). see also updated component credentialing and granting of clinical privileges. U.s. department of defense, version, U.s. department of the Army, headquarters, United states Army Medical department instruction 6025.13, “Medical Quality Assurance (MQA) and clinical Quality Management center, Medical support to detainee operations, special text no. 4-02.46 (2007), 1-14. in the Military health system (Mhs)” (17 February 2011), 201. 113 ibid., 1-13. 127 U.s. department of defense, instruction 6025.13, “Medical Quality Assurance (MQA) and clinical Quality Management in the Military health system (Mhs)” (17 February 2011). 114 ibid. 128 ibid. 115 ibid., 1-14. the examiner must be a licensed health care provider. 129 the surgeon generals must also report, at least annually, management information regarding 116 Alberto Moreno and vincent iacopino, “Forensic investigations of torture and cruel, adverse privileging actions to the dod risk Management committee, which is the primary inhuman or degrading treatment in Mexico: A Follow-Up study After the implementation of oversight body of the assistant secretary of defense for health affairs for monitoring reporting the istanbul Protocol,” Journal of Legal Medicine 29, no. 4 (2008): 443–478; vincent iacopino of malpractice and adverse privileging actions to the national Practitioner databank. the and others, “Physician complicity in Misrepresentation and omission of Medical Evidence in department of legal Medicine also submits information to the risk Management committee Post-detention Medical Examinations in turkey,” JAMA 276 (1996): 396–402. regarding adverse privileging actions.

117 U.s. department of the Army, headquarters, United states Army Medical department 130 U.s. department of defense, dod 6025.13-r, Military Health System (MHS) Clinical Quality center, Medical support to detainee operations, special text no. 4-02.46 (2007), 1-14. Assurance (CQA) Program Regulation (2004), secs. c10.9.1.3, dl1.1.3., dl1.1.36, http://www.dtic.mil/whs/directives/corres/pdf/602513r.pdf. 118 U.s. department of defense, directive 3115.09, “dod intelligence interrogations, detainee debriefings, and tactical Questioning” (2008; revised october 2012). 131 U.s. Air Force, instuction 44-119, “Medical Quality operations” (2007), secs. 5.2, 5.3.4. 119 ibid. 132 see, e.g., U.s. department of the navy, health care Quality Assurance Policies for operating Forces, opnav instruction 6320.7A/Marine corps order 6320.4 (2007), sec. 9, 120 ibid., Enclosure 3. http://doni.daps.dla.mil/directives/06000%20Medical%20and%20dental%20services/06- 121 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to 300%20general%20Medicine%20support/6320.7A.pdf. detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012). 122 U.s. department of defense, dod 6025.13-r, Military Health System (MHS) Clinical Quality Assurance (CQA) Program Regulation (2004), c10.9.1.3, http://www.dtic.mil/whs/directives/ chAPtEr 3 corres/pdf/602513r.pdf.

123 “licensure requirement for health-care Professionals,” U. S. Code 10 (2011) § 1094; U.s. 1 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee department of defense, instruction 6025.13, “Medical Quality Assurance (MQA) and operations” (6 June 2006), http://www.dtic.mil/whs/directives/corres/pdf/231008p.pdf. clinical Quality Management in the Military health system (Mhs)” (17 February 2011), 2 hernán reyes, “Medical and Ethical Aspects of hunger strikes in custody and the issue of http://www.dtic.mil/whs/directives/corres/pdf/602513p.pdf. torture,” in Maltreatment and Torture, ed. Manfred oehmichen (lübeck: schmidt-römhild, 124 Providers who are assigned to geographically separated Units, i.e., are physically separat- 1998). see also Jean-Pierre restellini, “les grèves de la faim en pénitentiaire,” Revue Pénale ed from their host unit but are supported by and are under the command and control of Suisse 106 (1989). the host unit commander, are still reviewed for adverse actions. if an adverse action is 3 see, e.g., george J. Annas, “hunger strikes at guantanamo – Medical Ethics and human rights being considered on a privileged or non-privileged provider in the theater of operations, in a ‘legal black hole,’” New England Journal of Medicine 355, no. 13 (28 sept 2006); Michael the deployed military treatment facility will consider the information found during ratner, “how We closed the guantanamo hiv camp: the intersection of Politics and inquiry and make the decision to return the provider to the originating treatment facility litigation,” Harvard Human Rights Journal 11 (1998): 187-220; stonecipher and sneed, “Prisoner for action. Fasting as symbolic speech: the Ultimate speech-Action test,” Howard Law Journal 32 (1989): 242 | Ethics AbAndonEd Notes | 243

549–560; Wei and brendel, “Psychiatry and hunger strikes,” Harvard Human Rights Journal 23 18 World Medical Association, WMA Declaration of Malta on Hunger Strikers (1991, revised 2006), (2010): 76–109. http://www.wma.net/en/30publications/10policies/h31/index.html.

4 Jeanne smeulers, “Medical background of hunger strikers” in Assistance in hunger strikes: 19 ibid., Principle 3. a manual for physicians and other health personnel dealing with hunger strikers, Johannes Wier 20 one of the four core principles of medical ethics. see World Medical Association, “WMA Foundation for health and human rights (Amersfoort: Johannes Wier Foundation, 1995). declaration of Malta – A background Paper on the Ethical Management of hunger strikes,” 5 david beresford, Ten Men Dead: The Story of the 1981 Irish Hunger Strike (new York: Atlantic World Medical Journal 52, no. 2 (June 2006). Monthly Press, 1987). 21 british Medical Association, Medical Ethics today: the bMA’s handbook of Ethics and law, 6 nY oguz and sh Miles, “the physician and prison hunger strikes: reflecting on the experience 2nd ed. (london: british Medical Association, 2004), 602–607, 623–625. in turkey,” Journal of Medical Ethics 31 (2005): 169–172. 22 Malta declaration (2006), guidelines and Article 13. 7 World Medical Association, web-based course, “doctors Working in Prison: human rights and 23 ibid., guideline 11. Ethical dilemmas” (2004), chap. 5, http://www.wma.net/en/70education/10onlinecourses/20prison/index.html. 24 scott A. Allen and hernán reyes, “clinical and operational issues in the Medical Management of hunger strikers” in Interrogation, Forced Feedings and the Role of Health 8 At guantanamo, protocols refer to this form of a hunger strike as voluntary fasting; a dry fast is Professionals, ed. ryan goodman and Mindy roseman (cambridge, MA: human rights called voluntary total fasting. Program, harvard law school, 2009); Johannes Wier Foundation for health and human 9 World Medical Association, “WMA declaration of Malta – A background Paper on the Ethical rights, Assistance in hunger strikes: a manual for physicians and other health personnel dealing Management of hunger strikes,” World Medical Journal 52, no. 2 (June 2006): 32. with hunger strikers (Amersfoort: Johannes Wier Foundation, 1995). 10 the appearance of ketone bodies in the breath will depend on many factors, including body 25 Malta declaration (2006), Principle 7. mass and fat, but generally speaking this rule of thumb has been found to work in the majority 26 Physicians are often seen by prisoners first and foremost as agents of the detaining authority, of cases. which is naturally perceived as acting against prisoners’ interests if only by virtue of the situa- 11 however, there was one death at 43 days. tion of custody and confinement. in the context of indefinite detention in times of conflict, animosity and distrust will obviously be heightened. 12 see World Medical Association, web-based course, “doctors Working in Prison: human rights and Ethical dilemmas” (2004), chap. 5. 27 steven h. Miles, Oath Betrayed: Torture, Medical Complicity, and the War on Terror (new York: random house, 2006). 13 World Medical Association, Declaration of Tokyo (1975), Article 5, www.wma.net/en/30 publications/10policies/c18/index.html. in the 2006 revised version of the declaration of 28 Malta declaration (2006), Principle 5.Without these efforts, authorities will likely follow their tokyo, it is numbered article 6, but the wording is the same. own, often coercive, path. see george J. Annas, “American vertigo: ‘dual Use,’ Prison Physicians, research, and guantanamo,” Case Western Reserve Journal of International Law 43 14 Personal communication by the late dr. André Wynen, former and honorary secretary- (2011): 631–650. national medical associations need to provide support for physicians con- general and founding member of the World Medical Association, documented in the travaux fronted by such situations, and if necessary appeal to supra-national entities such as the World préparatoires. Medical Association for guidance. 15 letter from karin Moran, American Medical Association, to William hopkins and 29 Malta declaration (2006), Principle 5 [see note 18]. sherman carroll, Medical Foundation for victims of torture (15 March 2006); American Medical Association, “AMA reiterates opposition to Feeding individuals Against their Will,” 30 ibid., clinical guideline 5. American Medical News (10 March 2006). 31 see bruno gravier and others, “Une grève de la faim est un acte de protestation – Quelle est la 16 Written statement to a task Force member by a northern ireland senior Medical officer who place des soignants?,” Bulletin des Médecins Suisses 39 (2010): 1521–25, which describes the role was involved at the time in the irish hunger strikes. of the medical staff, particularly regarding the issue of determining informed consent. 17 initially, the revisions were addressed to the questions arising in the hunger strikes in turkey. 32 hernán reyes, “Medical and Ethical Aspects of hunger strikes in custody and the As the process of revision moved forward, the new declaration also took into account the issue of torture,” in Maltreatment and Torture, ed. Manfred oehmichen (lübeck: schmidt- different but also troubling situation of responses to hunger strikes at guantanamo bay. römhild, 1998). the return to force-feeding was one of the main reasons for the World Medical Association’s 33 Malta declaration (2006), clinical guidelines 1, 2, and 3. addressing the ethical principles that apply to hunger strikes. see hernán reyes, “Force- Feeding and coercion: no Physician complicity,” virtual Mentor, American Medical Association 34 Marlynn Wei and rebecca W. brendel, “Psychiatry and hunger strikes,” Harvard Human Journal of Ethics 9, no. 10 (october 2007): 703–708. Rights Journal 23 (2010): 76–109. Psychiatrists insist that a psychiatric evaluation is necessary in all cases. the task Force believes that some mental disorders disqualify a prisoner from the 244 | Ethics AbAndonEd Notes | 245

“status” of hunger striker, and make that prisoner a full-fledged patient requiring medical (15 october 2003, revised August 2005), 1, http://humanrights.ucdavis.edu/ projects/the- attention. A prisoner refusing to eat because of a mental affliction, such as severe depression, guantanamo-testimonials-project/testimonies/testimonies-of-standard-operating-procedures/ may be reasonably declared incompetent to refuse treatment, and psychiatrists may even forced_feeding_sop.pdf; U.s. department of defense, Joint task Force – guantanamo, prescribe force-feeding, if and when such feeding is necessary to sustain his life. to the extent headquarters, “camp delta standard operating Procedures,” unclassified (28 May 2003), that individual competency assessment has been properly conducted, some form of force- chapter 19, section iii – Medical Problems, hunger strike; U.s. department of defense, feeding may thus, in such a case, be medically indicated. Joint task Force – guantanamo, headquarters, “camp delta standard operating Procedures,” unclassified (28 March 2004), chapter 19, section iii – Medical Problems, 35 see World Medical Association, “WMA declaration of Malta – A background Paper on the hunger strike, 19.2, http://www1.umn.edu/humanrts/oathbetrayed/soP%201-238.pdf. Ethical Management of hunger strikes,” World Medical Journal 52, no. 2 (June 2006): 32; Wei A hunger strike protocol referred to in the standard operating procedures has not been made and brendel, “Psychiatry and hunger strikes,” Harvard Human Rights Journal 23 (2010): 76–109. available to the task Force. 36 World Medical Association, “WMA declaration of Malta – A background Paper on the Ethical 51 this requirement is contained in later policies and protocols, including a 2007 policy Management of hunger strikes,” World Medical Journal 52, no. 2 (June 2006): 32, case applicable to camp bucca in iraq. U.s. department of the Army, headquarters, 705th Military Example 1. Police battalion, camp bucca, iraq, “Memorandum for the record, tiF soP 107, hunger 37 Malta declaration (2006), guideline 3. some ailments or diseases are contra-indications to strike Procedures.” see also cJtF detainee standard operating Procedure [bagram] (no date total fasting, including gastritis, peptic ulcers, and diabetes mellitus. [appears to be 2008]), Appendix 16 to Annex A, http://www.dod.gov/pubs/foi/operation_ and_plans/detainee/AclU_bagram_detention_cEntcoM_docsi.pdf [hereafter cited as 38 ibid., Principles 2 and 8, guideline 8. bagram hunger strike Protocol]. 39 ibid., guideline 2. 52 U.s. department of defense, Joint task Force – guantanamo, headquarters, “camp delta standard operating Procedures,” unclassified (28 May 2003), chapter 19, section iii – 40 ibid., guideline 6. Medical Problems, hunger strike; U.s. department of defense, Joint task Force – 41 ibid., clinical guideline 11. guantanamo, headquarters, “camp delta standard operating Procedures,” unclassified (28 March 2004), chapter 19, section iii – Medical Problems, hunger strike, 19.2, 42 see george J. Annas, “human rights outlaws: nuremberg, geneva, and the global War http://www1.umn.edu/humanrts/oathbetrayed/soP%201-238.pdf. see also: U.s. department on terror,” Boston University Law Review 87 (2007): 427–466. of defense, detention hospital, guantanamo bay, cuba, “soP no: 001 voluntary & voluntary 43 Johannes Wier Foundation for health and human rights, Assistance in hunger strikes: total Fasting and re-Feeding” (2005), 4; bagram hunger strike Protocol. a manual for physicians and other health personnel dealing with hunger strikers (Amersfoort: 53 U.s. department of defense, detention hospital, guantanamo bay, cuba, “soP no: 001 Johannes Wier Foundation, 1995). voluntary & voluntary total Fasting and re-Feeding” (2005), 1. A 2007 policy applicable to 44 international council of nurses, Position statement, “the nurses’ role in the care of Prisoners camp bucca in iraq is similar. U.s. department of the Army, headquarters, 705th Military and detainees” (1998), http://www1.umn.edu/humanrts/instree/prisonerscare.html. Police battalion, camp bucca, iraq, “Memorandum for the record, tiF soP 107, hunger strike Procedures.” see also bagram hunger strike Protocol. 45 international council of nurses, Policy statement, “nurses’ role in the care of detainees and prisoners” (2011), http://www.icn.ch/images/stories/documents/publications/position_ 54 the commander of the Joint Medical group is the senior medical officer responsible for statements/A13_nurses_role_detainees_Prisoners.pdf. detainee medical care. the Joint task Force commander is responsible for all detainee-related operations, including intelligence, detention management, and medical care. 46 Uk department of health, Guidelines for the clinical management of people refusing food in immigration removal centres and prisons (August 2010), http://www.globallawyersand 55 Enteral feeding is described as follows in the 2009 report by Admiral Walsh: physicians.org/storage/Uk%20Protocol.pdf. Enteral feeding is the process of providing nutritional support for a patient by passing a tube through the nose into the stomach (a nasogastric feeding tube), through which nutritional supple- 47 karen greenberg, The Least Worst Place: Guantanamo’s First 100 days (new York: oxford ments, such as Ensure Plus or Boost Plus, can be infused. This is a common medical procedure University Press UsA, 2009), 185–187; center for constitutional rights, The Guantanamo used to safely provide nutrition to a patient who is not taking food by mouth, but whose intestinal Prisoner Hunger Strikes & Protests: February 2002–August 2005 (new York: center for function is intact (e.g., a patient whose jaw is wired shut). The nasogastric tube used is size 10 or constitutional rights, september 2005). 12 French, which would be 3.5-4.5 millimeters in diameter (slightly larger in diameter than a 48 karen greenberg, The Least Worst Place (2009), 187–188. piece of cooked spaghetti but less than a pencil eraser). The tube should be well lubricated (vis- cous lidocaine should be offered, but some patients prefer other lubricants). After insertion of the 49 center for constitutional rights, The Guantanamo Prisoner Hunger Strikes & Protests: tube, its placement in the stomach is confirmed prior to allowing the nutritional supplement to February 2002–August 2005 (2005). flow in from a hanging bag by gravity. This procedure usually takes about an hour, after which the feeding tube is removed. Once stabilized, most patients can be sustained on two feedings per day. 50 it is not clear whether formal policies existed before 2003. the two policies discussed here Admiral Patrick Walsh, U.s. department of defense, review of department compliance with are the first ones available to the task Force. U.s. department of defense, detention hospital, President’s Executive order on detainee conditions of confinement (2009), 57, n. 50, guantanamo bay, cuba, “soP no: 001 voluntary & voluntary total Fasting and re-Feeding” 246 | Ethics AbAndonEd Notes | 247

http://www.defense.gov/pubs/pdfs/review_of_department_compliance_with_presidents_ 72 supplementary declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05-301 (gk) (d.d.c. 5 executive_order_on_detainee_conditions_of_confinementa.pdf [hereafter cited as Walsh october 2005), http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/ report (2009)]. testimonies/prisoner-testimonies/supplemental-declaration-of-julia-tarver-october-13-2005.

56 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october 73 Al-Joudi v. Bush, 406 F. supp. 2d 13, 16–17 (d.d.c. 2005). 2005), para. 14. 74 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october 57 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october 2005). in Admiral Walsh’s report, the claim was different: “Although new tubes are generally 2005), 5, http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/ used the JMg soP, which guides cleaning requirements for feeding tubes, has been reviewed testimonies/testimony-of-military-physicians/edmondson_affidavit.pdf. and approved by the infection control officer. Per manufacturer guidelines tubes may not be used for more than 14 days and are always used for only one detainee.” Walsh report (2009) 58 ibid., para. 10. A 2007 policy applicable to camp bucca in iraq is similar. U.s. department of [see note 57]. the Army, headquarters, 705th Military Police battalion, camp bucca, iraq, “Memorandum for the record, tiF soP 107, hunger strike Procedures.” 75 supplementary declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05-301 (gk) (d.d.c. 5 october 2005). 59 ibid., para. 7. the task Force did not have access to the entirety of the procedure, as there are significant redactions in the policy publicly released. 76 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october 2005), para. 8 and 14. 60 ibid., para. 15. 77 Al-Joudi v. Bush, 406 F. supp. 2d 13, 17 (d.d.c. 2005); supplementary declaration of Julia 61 U.s. department of defense, detention hospital, guantanamo bay, cuba, “soP no: 001 tarver, Esq., Al-Joudi v. Bush, civ. no. 05-301 (gk) (d.d.c. 5 october 2005), 6. voluntary & voluntary total Fasting and re-Feeding” (2005), 4.http://humanrights.ucdavis.edu/ projects/the-guantanamo-testimonials-project/testimonies/testimonies-of-standard-operating- 78 susan okie, “glimpses of guantanamo – Medical Ethics and the War on terror,” New England procedures/hunger_strike_sop.pdf p. 1 this policy was also followed at bagram as of 2008. Journal of Medicine 353, no. 24 (2005): 2529–2534. there were suicides at guantanamo, and mass see also bagram hunger strike Protocol [see note 51]. suicide attempts, but these acts do not warrant the inference that hunger strikers were suicidal. 62 U.s. department of defense, detention hospital, guantanamo bay, cuba, “soP no: 001 79 Eric schmitt and tim golden, “Force-Feeding at guantanamo is now Acknowledged,” voluntary & voluntary total Fasting and re-Feeding” (2005), 2. new York times (22 February 2006), http://www.nytimes.com/2006/02/22/international/ middleeast/22gitmo.html. 63 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october 2005), para. 15. 80 Adam Zagorin, “At guantanamo, dying is not Permitted,” Time (30 June 2006). captain sollock has died. 64 tim golden, “the battle for guantanamo,” New York Times Magazine (17 september 2006), http://www.nytimes.com/2006/09/17/magazine/17guantanamo.html?pagewanted=all. 81 ibid.

65 ibid. see also center for constitutional rights, The Guantanamo Prisoner Hunger Strikes & 82 Al-Adahi v. Obama, 596 F. supp. 2d 111 (d.d.c. 2009). based on the government’s representa- Protests: February 2002–August 2005 (2005), 9. tions, the court deemed it reasonable to implement security policies including the use of restraint chairs, though it did so under legal standards requiring significant deference to 66 tim golden, “the battle for guantanamo,” New York Times Magazine (17 september 2006); judgments of security and medical officials. the decision makes no reference to captain center for constitutional rights, The Guantanamo Prisoner Hunger Strikes & Protests: February Edmondson’s declaration. 2002–August 2005 (2005), 11. 83 Al-Adahi v. Obama, 596 F. supp 2d 111, 115 (d.d.c.2009). see also tim golden, “tough U.s. 67 tim golden, “the battle for guantanamo,” (17 september 2006). New York Times Magazine steps in hunger strikes at camp in cuba,” New York Times (9 February 2006). 68 , 406 F. supp. 2d 13, 15 and n. 1 (d.d.c. 2005). the dod claimed that the number Al-Joudi v. Bush 84 Al-Adahi v. Obama, 596 F. supp. 2d 111, 121 (d.d.c. 2009). of hunger strikers peaked at 131 in september, 2005. tim golden, “tough U.s. steps in hunger strikes at camp in cuba,” New York Times (9 February 2006), http://www.nytimes.com/ 85 tim golden, “the battle for guantanamo,” New York Times Magazine (17 september 2006). 2006/02/09/politics/09gitmo.html?pagewanted=all. 86 the task Force had access to 2007 procedures from camp bucca in iraq that reflect this poli- 69 susan okie, “glimpses of guantanamo – Medical Ethics and the War on terror,” New England cy of placing hunger strikers in isolation. U.s. department of the Army, headquarters, 705th Journal of Medicine 353, no. 24 (2005): 2529–2534. Military Police battalion, camp bucca, iraq, “Memorandum for the record, tiF soP 107, hunger strike Procedures.” see also bagram hunger strike Protocol [see note 51]. the policy 70 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october seems to have been in place at guantanamo as well. 2005), para. 9. 87 the original declaration of Malta, from 1991, allows for “removal from the presence of fellow 71 Adam Zagorin, “At guantanamo, dying is not Permitted,” Time (30 June 2006), hunger strikers to avoid any peer pressure.” that is not the same as keeping them in isolation. http://www.time.com/time/nation/article/0,8599,1209530,00.html. 248 | Ethics AbAndonEd Notes | 249

88 tim golden, “tough U.s. steps in hunger strikes at camp in cuba,” New York Times 0301 (gk) (d.d.c. 20 september 2006), 5–6; declaration of thomas b. Wilner, Al-Odah v. (9 February 2006). United States, civ. no. 02-0828 (ckk) (d.c.c. 29 september 2005), 8. 89 ibid. 108 declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 20 september 2006), 6. 90 ibid. 109 declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 20 91 Adam Zagorin, “At guantanamo, dying is not Permitted,” (30 June 2006). Time september 2006); declaration of richard g. Murphy, Jr., Al-Adahi v. Bush, civ. no. 05-280 92 ibid. (gk) (d.d.c. 23 February 2006), 3; declaration by Marc d. Falkoff, Shalabi v. Bush, civ. no. 05-0520 (rMU) (d.c.c. 7 March 2006), 2. 93 Adam Zagorin, “At guantanamo, dying is not Permitted,” Time (30 June 2006). 110 declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 20 94 Eric schmitt and tim golden, “Force-Feeding at guantanamo is now Acknowledged,” september 2006). new York times (22 February 2006). 111 report of dr. Emily keram, Zuhair v. Obama, civ. no. 08-0864 (d.d.c. 28 April 2009), 11. 95 tim golden, “tough U.s. steps in hunger strikes at camp in cuba,” New York Times (9 February 2006). this position was also asserted by the government in court proceedings. 112 “Petitioners motion to compel medical and psychiatric visits,” Al-Oshan v. Obama, civ. Al-Adahi v. Obama, 596 F. supp. 2d 111 (d.d.c. 2009). no. 05-0520 (rMU) (d.d.c. 10 september 2010). 96 ibid. 113 supplemental declaration of dr. Emily A. keram, Al-Oshan v. Obama, civ. no. 05-0520 (rMU) (d.d.c. 2 november 2009), http://humanrights.ucdavis.edu/projects/the- 97 Adam Zagorin, “At guantanamo, dying is not Permitted,” Time (30 June 2006). guantanamo-testimonials-project/testimonies/testimony-of-other-physicians/supplemental- declaration-of-dr-emily-keram-on-abdul-rahman-shalabi/?searchterm=none. 98 tim golden, “tough U.s. steps in hunger strikes at camp in cuba,” New York Times (9 February 2006). 114 report of dr. Emily keram, Zuhair v. Obama, civ. no. 08-0864 (d.d.c. 28 April 2009), 11. 99 this later became official policy, at least at bagram. see also george J. Annas, “hunger strikes 115 supplementary declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05-301 (gk) (d.d.c. at guantanamo – Medical Ethics and human rights in a ‘legal black hole,’ New England 5 october 2005). Journal of Medicine 355, no. 13 (28 sept 2006): 1377. 116 declaration of dr. bruce Meneley, in re: guantanamo bay detainee litigation, civ. no. 04- 100 ibid. see also susan okie, “glimpses of guantanamo – Medical Ethics and the War on 1254 (hhk) (d.d.c. 25 August 2008), http://docs.justia.com/cases/federal/district-courts/ terror,” New England Journal of Medicine 353, no. 24 (2005): 2529–2534. district-of-columbia/dcdce/1:2008mc00442/131990/346/1.pdf. 101 Malta declaration (2006), guideline 7 [see note 18]. 117 Al-Adahi v. Obama, 596 F. supp. 2d 111 (d.d.c. 2009). the court also rejected the claims on jurisdictional grounds and stated the use of the restraint chair did not amount to cruel and 102 report of dr. Emily keram, Zuhair v. Obama, civ. no. 08-0864 (d.d.c. 28 April 2009), unusual punishment because the legal standard required the officials to act with “deliberate http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/ indifference” to detainees’ health needs. As discussed below, however, the court did accept testimonies/ testimony-of-other-physicians/medical-and-psychiatric-evaluation-of- the dod’s arguments that they were concerned with saving the lives of the detainees and ahmed-zair-salim-zuhair. there was no less restrictive alternative possible. 103 Eric schmitt and tim golden, “Force-Feeding at guantanamo is now Acknowledged,” 118 david nicholl and others, letter, “Forcefeeding and restraint of guantanamo bay hunger new York times (22 February 2006). strikers,” The Lancet 367 (2006): 811. 104 george J. Annas, “hunger strikes at guantanamo – Medical Ethics and human rights in a 119 letter from karin Moran, American Medical Association, to William hopkins and sherman ‘legal black hole,’” New England Journal of Medicine 355, no. 13 (28 sept 2006): 1377. carroll, Medical Foundation for victims of torture (15 March 2006); American Medical 105 declaration of richard g. Murphy, Jr., Al-Adahi v. Bush, civ. no. 05-280 (gk) (d.d.c. 23 Association, “AMA reiterates opposition to Feeding individuals Against their Will,” February 2006), 3–4; declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05-0301 (gk) American Medical News (10 March 2006). (d.d.c. 20 september 2006), 4; report of dr. Emily keram, Zuhair v. Obama, civ. no. 08- 120 kevin b. o’reilly, “Physicians speak out on prisoner force-feeding,” American Medical News 0864 (d.d.c. 28 April 2009). (3 April 2006), http://www.ama-assn.org/amednews/2006/04/03/prsc0403.htm. 106 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 121 islamic Medical Association of north America, “iMAnA statement on the question of forced october 2005), 5. feeding of hunger-striking detainees in Us custody” (5 november 2007), 107 declaration by Marc d. Falkoff, Shalabi v. Bush, civ. no. 05-0520 (rMU) (d.c.c. 7 March http://www.imana.org/?page=hungerstriking. 2006), 2; declaration of richard g. Murphy, Jr., Al-Adahi v. Bush, civ. no. 05-280 (gk) 122 Un general Assembly, resolution 37/194, “Principles of Medical Ethics relevant to the (d.d.c. 23 February 2006), 7; declaration of Julia tarver, Esq., Al-Joudi v. Bush, civ. no. 05- 250 | Ethics AbAndonEd Notes | 251

role of health Personnel, particularly Physicians, in the Protection of Prisoners and 135 U.s. department of Justice, Federal bureau of Prisons, “Program statement P5562.05: detainees against torture and other cruel, inhuman or degrading treatment or Punishment” hunger strikes (29 July 2005), para. 8 [7 also cited], http://www.bop.gov/policy/prog (18 december 1982), Principle 5, http://www.un.org/documents/ga/res/37/a37r194.htm. stat/5562_005.pdf. 123 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee 136 ibid., para. 7. operations” (6 June 2006), para. 4.7.1. this was the same policy that sought to justify the 137 ibid., para. 8. ethical propriety of participation of physicians and psychologists in behavioral science consultation teams. 138 luke Mitchell, “six Questions for cynthia smith on the legality of Force-feeding at guantanamo,” the stream, (4 June 2009), http://harpers.org/archive/ 124 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee Harper’s Magazine 2009/06/hbc-90005110. operations” (6 June 2006). 139 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october 125 see george J. Annas, “Military Medical Ethics – Physician First, last, Always,” New England 2005). Journal of Medicine 359 (2008):1087–1090. 140 U.s. department of defense, “Media roundtable with Assistant secretary Winkenwerder,” 126 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee news transcript (7 June 2006), http://www.defenselink.mil/transcripts/transcript.aspx? operations” (6 June 2006), para. 4.1.6. transcriptid=33. 127 report of dr. Emily keram, Zuhair v. Obama, civ. no. 08-0864 (d.d.c. 28 April 2009), 141 Un general Assembly, resolution 37/194, “Principles of Medical Ethics” (1982). http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/ testimonies/ testimony-of-other-physicians/medical-and-psychiatric-evaluation-of- 142 islamic Medical Association of north America, “iMAnA statement on the question of forced ahmed-zair-salim-zuhair. feeding of hunger-striking detainees in Us custody” (5 november 2007). 128 U.s. department of Justice, Federal bureau of Prisons, “Program statement P5562.05: 143 one of the authors of this chapter was also co-author of the background paper, together with hunger strikes (29 July 2005), 1–8, http://www.bop.gov/policy/progstat/5562_005.pdf. the british Medical Association.

129 Mike baker, AP Features, “Federal prison to start force-feeding Palestinian whose hunger 144 Al-Adahi v. Obama, 596 F. supp. 111, 121 (d.d.c. 2009). strike has lasted 6 weeks,” Bay Ledger (7 March 2007), http://www.blnz.com/news/2007/03/ 07/Federal_prison_start_force-feeding_Palestinian_er_s.html. 145 ibid. 130 “Use of Force and Application of restraints on inmates – Purpose and scope,” U.S. Code of 146 the document is part of a set of documents released under the Freedom of information Act: Federal Regulations 28 (2010), § 552.20. bagram hunger strike Protocol, Appendix 16 to Annex A and tab F [see note 51]. Although the specific date of this document is unclear, it is clear from the references that it was 131 there may be one exception. in response to a 2007 request from human rights Watch for released after october 2006. information concerning practices at federal supermax prison Adx Florence, which houses individuals convicted of terrorism and other offenses, the bureau of Prisons stated that 147 declaration of dr. bruce Meneley, in re: guantanamo bay detainee litigation, civ. no. 04- response to hunger strikes was governed by Program statement P5562.05, cited in note 130 1254 (hhk) (d.d.c. 25 August 2008). above. letter from kathleen kenney, Assistant director/general counsel, bureau of Prisons, to 148 bagram hunger strike Protocol, 000106. in 2012, a Pentagon spokesman similarly recognized Jennifer daskal, human rights Watch (9 April 2007) [on file with the task Force]. in a subse- hunger strikes as a form of non-violent protest and that those few who engage in this practice quent visit to the facility, human rights Watch was told by inmates that they were subject to are monitored so that their health is never in any real danger. see http://www.foxnews.com/ retaliation for using hunger strikes by being denied mattresses, water in cells, and toiletries, politics/2012/03/13/two-11-suspects-reportedly-on-gitmo-hunger-strike/. and subjected to the use of punitive and painful restraint chairs. staff responded that inmates were placed in restraints only for short periods before feeding took place. letter from Jamie 149 the protocol classifies a hunger striker as someone who refuses meals for 72 hours or Fellner and Jennifer daskal to harley lapin (2 May 2007) [on file with the task Force]. has missed nine consecutive meals. At that time, after notifying the chain of command, the detainee is evaluated medically and psychologically. in accordance with good medical 132 United states of America, Second Periodic Report of the United States of America to the practice, if a detainee is determined to be suffering from a mental disorder, he is referred Committee Against Torture (6 May 2005), para. 35, http://www1.umn.edu/humanrts/cat/ for treatment of the disorder. us-statereport2005.html. 150 bagram hunger strike Protocol, 000108. 133 “Use of Four-Point restraints,” U.S. Code of Federal Regulations 28 (2010), § 552.24. 151 ibid. 134 see U.s. department of Justice, Federal bureau of Prisons, “Program statement P5562.05: hunger strikes (29 July 2005), 7; leonard s. rubenstein and george J. Annas, “Medical 152 ibid., 000106, 000108. ethics at guantanamo bay detention center and in the Us military: a time for reform,” 153 ibid., 000109–10. The Lancet 374 (2009): 353–355. 252 | Ethics AbAndonEd Notes | 253

154 ibid., 000120. 172 samir naji Al hasan Moqbel, “gitmo is killing Me,” op-Ed contributor, New York Times (14 April 2013), http://www.nytimes.com/2013/04/15/opinion/hunger-striking-at- 155 declaration of dr. bruce Meneley, in re: guantanamo bay detainee litigation, civ. no. 04- guantanamo-bay.html. 1254 (hhk) (d.d.c. 25 August 2008). 173 letter from Jeremy A. lazarus, President, American Medical Association, to chuck hagel, 156 Al-Adahi v. Obama, 596 F. supp. 111, 121 (d.d.c. 2009). U.s. secretary of defense (25 April 2013), https://www.documentcloud.org/docu- 157 , “10 Percent of guantanamo detainees now being force fed,” ments/694196-hunger-strikers-letter-04-25-13.html. (8 January 2009), http://www.mcclatchydc.com/2009/01/08/59284/10-percent-of- 174 susan Mayor, “AMA calls for inquiry into doctors’ role in abuse of prisoners,” British Medical guantanamo-detainees.html. Journal 329 (2004): 993; charlie savage, “Amid hunger strike, obama renews Push to close 158 Walsh report (2009), 57 [see note 57]. cuba Prison,” new York times (30 April 2013), http://www.nytimes.com/2013/05/01/us/ guantanamo-adds-medical-staff-amid-hunger-strike.html?hp&_r=0. 159 ibid. 175 Ciorap v. Moldova, App. no. 12066/02, Eur. ct. h.r. (19 June 2007). 160 ibid., 58. 176 scott A. Allen and hernán reyes, “clinical and operational issues in the Medical 161 ibid., 56. Management of hunger strikers” in Interrogation, Forced Feedings and the Role of Health 162 the dod and the Walsh report do not indicate how many detainees have been subjected to Professionals, ed. goodman and roseman (2009). the use of the restraint chair. this question bears investigation. 177 george J. Annas, “American vertigo: ‘dual Use,’ Prison Physicians, research, and guantanamo,” 43 (2011): 631–650. 163 irom chanu sharmila of india, who has been on a hunger strike for more than a decade. Case Western Reserve Journal of International Law national medical associations need to provide support for physicians confronted to such lydia Polgreen, “in india, 11-Year hunger strike over Military violence is Waged in ethical dilemmas, and if necessary appeal to supra-national entities such as the World shadows,” New York Times (11 september 2011), http://www.nytimes.com/2011/09/11/world/ Medical Association for guidance. asia/11manipur.html?_r=1&scp=1&sq=polgreeb%20hunger%20striek&st=cse. it does not appear, though, that she is subjected to physical restraints in the process. 178 if security procedures require a guard’s presence within earshot or if there are microphones or other devices to monitor conversations, the physician should be transparent and tell the 164 Jason leopold, “guantanamo detainees stage hunger strike to Protest confinement hunger striker that he, the doctor, is not in a position to impose their removal. conditions,” Truthout (29 April 2011), http://www.truthout.org/guantanamo-detainees- hunger-strike-protest-confinement-conditions/1304092655. 179 Malta declaration (2006), clinical guidelines 9 and 10 [see note 18].

165 catherine herridge, “two 9/11 suspects on hunger strikes, sources say,” Fox News 180 international committee of the red cross, Geneva Conventions (1949), common Article 3; (14 March 2012), http://www.foxnews.com/politics/2012/03/13/two-11-suspects-reportedly- United nations, Standard Minimum Rules for the Treatment of Prisoners (1977), on-gitmo-hunger-strike/. http://www1.umn.edu/humanrts/instree/g1smr.htm. 166 Joint task Force – guantanamo, Joint Medical group, “standard operating Procedure: 181 Marine brig. gen. Michael lehnert, commander of the guantanamo detention mission Medical Management of detainees on hunger strike,” (5 March 2013), said that the detainees’ underlying concern is uncertainty over their indefinite detention. http://www.aljazeera.com/humanrights/2013/05/201358152317954140.html. “Military says all but 13 prisoners at guantanamo have eaten since beginning of hunger 167 declaration of John Edmondson, Al-Joudi v. Bush, civ. no. 05-0301 (gk) (d.d.c. 19 october protest,” Associated Press (3 March 2002), http://www2.ljworld.com/news/2002/mar/03/ 2005), para. 15. military_says_all/?print.

168 charlie savage, “number of hunger strikers surges at guantanamo,” New York Times (20 March 2013), http://www.nytimes.com/2013/03/21/us/hunger-strike-cases-surge-at- guantanamo.html. chAPtEr 4 169 carol rosenberg, “White house monitoring hunger strikes,” Miami Herald (28 March 2013), http://www.miamiherald.com/2013/03/27/3309986/white-house-monitoring- 1 Physicians for human rights and University of cape town health sciences centre, dual guantanamo.html. loyalty Working group, Dual Loyalty and Human Rights in Health Professional Practice: Proposed 170 Matt spetalnick, “red cross chief presses U.s. on guantanamo hunger strike,” Reuters (11 Guidelines and Institutional Mechanisms (boston: Physicians for human rights and University of April 2013), http://www.reuters.com/article/2013/04/11/us-usa-guantanamo-redcross- cape town, March 2003), http://physiciansforhumanrights.org/library/ reports/dual-loyalty- idUsbrE93A10J20130411. and-human-rights-2003.html.

171 carol rosenberg, “troops forcibly move hunger strikers into cells,” Miami Herald (14 April 2013), 2 lisa soleymani lehmann and others, “A survey of Medical Ethics Education at U.s. and http://www.miamiherald.com/2013/04/13/3342104/troops-forcibly-move-hunger-strikers.html. canadian Medical schools,” Academic Medicine 79, no. 7 (2004): 682–689. 254 | Ethics AbAndonEd Notes | 255

3 l. Emily cotter and others, “health and human rights Education in U.s. schools of Medicine 13 sessums and others, “Ethical Practice Under Fire: deployed Physicians in the global War and Public health: current status and Future challenges.” PLoS ONE 4, no. 3 (2009): e4916. on terrorism,” Military Medicine 174, no 5. (2009): 441–447. 4 Uniformed services University of the health sciences was established by an Act of congress in 14 colonel telita crosland (senior Medical officer, health Policy and services directorate, 1972 (Pl 92-426). the statute mandated the creation of the university, under the dod, within offices of Army and surgeon general) in conversation with the author. 25 miles of the district of columbia, and mandated the graduation of no less than 100 medical 15 international committee of the red cross, students annually. Although the statute was passed in 1972, the medical school did not begin Geneva Convention (III) relative to the Treatment (12 August 1949), Article 4. admitting students until 1976, when it received provisional accreditation as a four-year med- of Prisoners of War ical school from the liaison committee on Medical Education, the accrediting body for all 16 ibid., para. 93. U.s. medical schools. it received full accreditation in 1980, in which year the first class, with 29 students, graduated. 17 ibid., para. 247. 5 Uniformed services University of the health sciences, catalog 2008–2010. 18 international committee of the red cross, Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (12 August 1949), Article 78. 6this number should be compared with 34.8% of those who had received their medical education in civilian medical schools under the health Professions scholarship Program. 19 U.s. department of the Army, headquarters, FM 27-10, The Law of Land Warfare (July 1956), daniel l. cohen and others, “longer-term career outcomes of Uniformed services paras. 433, 442, 443, 446, http://www.afsc.army.mil/gc/files/fm27-10.pdf. University of the health sciences Medical school graduates: classes of 1980-1989,” 20 ibid., paras. 270, 271. Military Medicine 173, no. 5 (2008): 422. 21 U.s. department of the Army, headquarters, FM 6-22 (formerly FM 22-100), 7 ibid. Army Leadership: Competent Calm and Agile (october 2006). 8 Edmund g. howe, “Mixed Agency in Military Medicine: Ethical roles in conflict” in Military 22 U.s. department of the Army, office of the surgeon general, Final Report: Assessment of , vol. 1 (Washington, dc: borden institute, 2003), 333–335. Medical Ethics Detainee Medical Operations for OEF, GTMO, and OIF (2005), sec. 6-1, http://www.global 9 Michael l. gross, “bioethics and Armed conflict: Mapping the Moral dimensions of Medicine security.org/military/library/report/2005/detmedopsrpt_13apr2005.pdf. and War,” Hastings Center Report 34, no. 6 (2004): 22–30. 23 ibid., secs. 6-7, 8-1, 8-2. 10 thomas beam, “Medical Ethics on the battlefield: the crucible of Military Medical Ethics” 24 ibid., secs. 9-1, 9-2. in U.s. department of the Army, office of the surgeon general, Military Medical Ethics, vol. 2 (2003); sessums and others, “Ethical Practice Under Fire: deployed Physicians in the global 25 ibid. War on terrorism,” Military Medicine 174, no 5. (2009): 441–447. 26 ibid., sec. 6-13. 11 the national naval Medical center (Army and navy) offers internal medicine, surgery, and 27 ibid., sec. 8-4. pediatric residencies; the san Antonio Military Medical center (Army and Air Force) offers internal medicine, surgery, ob/gyn, pediatrics, and emergency medicine residencies. Also 28 ibid., sec. 6-15. the manual was written in 2001 and is available at included are the military medical centers in (tripler, which is Army and has internal https://s3.amazonaws.com/Phr_reports/examining-asylum-seekers-manual.pdf. medicine, surgery, ob/gyn, and pediatric residencies), san diego (naval Medical center, has internal medicine, surgery, ob/gyn, pediatrics, and emergency medicine residencies), Fort 29 U.s. department of defense, instruction 2310.08E, “Medical Program support for detainee gordon georgia (Eisenhower Medical center, which is Army and has only internal medicine operations” (6 June 2006), http://www.dtic.mil/whs/directives/corres/pdf/231008p.pdf. and surgery residencies), keesler Mississippi (keesler Medical center, which is Air Force and 30 see http://www.ncosupport.com/military-training/detainee-operations.html. the course is not has internal medicine and surgery residencies), virginia (Portsmouth naval Medical center, available to the public. which has internal medicine, surgery, ob/gyn, pediatric, and emergency medicine residencies), and Washington state (Madigan Army Medical center, which has internal medicine, surgery, 31 U.s. department of the Army, headquarters, U.s. Army Medical command, otsg/MEd- ob/gyn, pediatric, and emergency medicine residencies). coM Policy Memo 13-027, “Us Army behavioral science consultation to detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” 12 U.s. Army directorate of Medical Education, http://www.mods.army.mil/medicaleducation/. (2012), 21; U.s. department of the Army, headquarters, U.s. Army Medical command, included in this group are also physicians in the reserve officer’s training corps (rotc) otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to Medical delay Program (those who enrolled in rotc, then decided to attend medical school detention operations, intelligence interrogations, detainee debriefing, and tactical and wish to complete residency training before serving in the army) and the health Questioning,” (2009), 21. Professions loan repayment Program (medical students with loans who did not enroll in the health Professions scholarship Program while in medical school but decide to serve in the 32 otsg/MEdcoM Policy Memo 13-027, “Us Army behavioral science consultation to military after graduation in exchange for loan repayments). detention operations, intelligence interrogations, detainee debriefing, and tactical Questioning,” (2012), 16–18; otsg/MEdcoM Policy Memo 09-053, “Us Army behavioral 256 | Ethics AbAndonEd Notes | 257

science consultation to detention operations, intelligence interrogations, detainee 6 on historical antecedents, see e.g., steven h. Miles, “doctors’ complicity with torture,” debriefing, and tactical Questioning,” (2009), 16–18. Editorial, British Medical Journal 337 (31 July 2008), 1088. 7 see appendix 4. 8 the problem of health professional complicity in prisoner abuse is not limited to the military chAPtEr 5 and intelligence spheres; some of these recommendations might be applicable to addressing analogous problems that arise in domestic law enforcement and immigration contexts. however, these considerations are beyond the scope of this task Force report. 1 in the military law context, health professionals can be held accountable under the provisions of the Uniform code of Military Justice. criminal prosecution through civilian courts would be 9 We use the word “prisoner” to convey the scope of reforms the task Force proposes. We use the appropriate in cases of torture under 18 U.s.c. §§ 2340-2340A. in such cases, where miscon- term not in a technical or legal sense, but to describe broadly the group of people whose liberty duct rises to the level of criminal conduct, the department of Justice ought to exercise its has been taken away and to whom protections should apply. authority to pursue violators for crimes alongside military credentialing and state boards’ authority to pursue them for professional misconduct. Enforcing the criminal law against mili- 10 see, e.g., international center for transitional Justice, Accountability in Argentina: tary and intelligence health professionals where appropriate would reassure state boards of the 20 Years Later, Transitional Justice Maintains Momentum (new York: international center for existence of political will to sanction ethical misconduct. conversely, when the department of transitional Justice, August 2005), http://ictj.org/sites/default/files/ictJ-Argentina- Justice fails to act against health professionals in those cases, state boards may be reluctant to Accountability-case-2005-English.pdf. apply disciplinary sanctions. At minimum, the department of Justice ought to make clear to the 11 steven h. Miles, telma Alencar, and brittney n. crock, “Punishing Physicians Who torture: state boards that its inaction in no way limits the state boards’ ability to discipline professional A Work in Progress,” Torture 20 (2010): 23–31. misconduct. Furthermore, it should refer cases that may not rise to the level of torture under federal law to the state boards for evaluation under the standards for professional conduct. 12 licensed health professionals are defined in each state law but generally include those with specialized training and degrees, such as physicians, psychologists, nurses, physical therapists, torture is considered a serious international crime that attracts universal jurisdiction. Under dentists, social workers, optometrists and many others. see, e.g., Federation of state Medical international law, the perpetrator may be prosecuted by any state, whether or not that state is con- boards, State of the States 2009: Report on Physician Regulation (Euless, tx: Federation of state nected with the perpetrator, the victim, or the location of the crime. For a discussion of universal Medical boards, 2009); randall r. bovbjerg and Pablo Aliaga, U.s. department of health & jurisdiction, including its supporting rationales and objections, see, e.g., stephen Macedo, ed., human services, “state discipline of Physicians: Assessing state Medical boards through Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law case studies” (2006), 33, 35 [hereafter cited as bovbjerg 2006]; Association of state and (Philadelphia: University of Pennsylvania Press, 2004); Jonathan h. Marks, “Mending the Web: Provincial Psychology boards, “Frequently Asked Questions regarding disciplinary Action,” Universal Jurisdiction, humanitarian intervention and the Abrogation of immunity by the accessed July 2013, http://www.asppb.net/i4a/pages/index. cfm?pageid=3499. security council,” Columbia Journal of Transnational Law 42 (2004): 445–490. 13 Federation of state Medical boards, State of the States 2009 (2009), 5. 2 Military and intelligence health professionals may also become defendants in civil suits for dam- ages brought by or on behalf of detainees. to date, however, U.s. courts have failed to recognize the 14 bovbjerg 2006, 8. right of non-U.s. citizen survivors of torture in post-9/11 conflicts to seek civil redress for torture 15 Federation of state Medical boards, State of the States 2009 (2009), 19. that was perpetrated by U.s. officials in offshore military and intelligence facilities. 16 nadia n. sawicki, “character, competence, and the Principles of Medical discipline,” Journal 3 social accountability measures, which can take a variety of forms, are more likely to emerge of health care law and Policy 13 (2010), at 295 [hereafter cited as sawicki 2010]: “… the pri- where formal accountability mechanisms are unreceptive. see, e.g., When healers harm, mary goal of (and justification for) professional discipline is public protection. As an extension http://whenhealersharm.org/. of the state’s police power, the medical board’s disciplinary authority is aimed at protecting 4 Although we focus on state disciplinary board proceedings, we recognize that these are not the medical consumers from the harms they may incur at the hands of incompetent or dishonest only available professional mechanisms for discipline. some voluntary health professional asso- physicians. this is reflected in the sanctions that may be imposed on physicians, which range ciations have internal disciplinary mechanisms that, if used against a health professional, might from alerting the medical board and community of a potential for harm (via a public letter of have serious implications, especially if the health professional’s employer or the laws of the reprimand) to withdrawing the physician’s right to practice (delicensure). Unlike criminal law, state in which she is licensed requires health professionals to be in good standing with that which is aimed at punishing wrongdoers, or civil law, which is aimed at victim compensation, association. however, professional associations’ power to sanction is usually limited to their professional discipline seeks to protect public welfare by incapacitating or rehabilitating own members, and many health professionals are not members of these associations. dangerous physicians.” 5 see chapter 2. U.s. department of defense, hA Policy 99-007, “Policy on Physician licensure,” 17 Federation of state Medical boards, State of the States 2009 (2009), 19; Association of state http://www.health.mil/libraries/hA_Policies_and_guidelines/99-007.pdf; U.s. department of and Provincial Psychology boards, “Frequently Asked Questions”; sawicki 2010, 293. defense, instruction 6025.13, “Medical Quality Assurance (MQA) and clinical Quality 18 sawicki 2010, 293. Management in the Military health system (Mhs)” (17 February 2011), http://www.dtic.mil/ whs/directives/corres/pdf/602513p.pdf. 19 sawicki 2010, 292–93. 258 | Ethics AbAndonEd Notes | 259

20 harris s. cohen, “Professional licensure, organizational behavior, and the Public interest,” 32 see new York state Assembly, bill no. A5891A (2 March 2011); new York state senate, Milbank Memorial Fund Quarterly: Health and Society 51 (1973), 76–80. bill no. s6795-2011 (22 March 2012). 21 Edmund Pellegrino and Arnold relman, “Professional Medical Associations: Ethical and 33 see Un general Assembly, resolution 45/110, “United nations standard Minimum rules for Practical guidelines,” 282 JAMA 282 (1999), 984–986. see also david rothman and others, non-custodial Measures (the tokyo rules)” (14 december 1990); Un general Assembly, “Professional Medical Associations and their relationships with industry,” JAMA 301 (2009), resolution 37/194, “Principles of Medical Ethics” (1982), http://www.un.org/documents/ga/ 1367–1372. res/37/a37r194.htm; World Medical Association, WMA Regulations in Times of Armed Conflict and Other Situations of Violence (1956; revised bangkok: WMA general Assembly, october 22 For example, the Alabama board of Examiners in Psychology adopts the American 2012), http://www.wma.net/en/30publications/10policies/a20/index.html; American Medical Psychological Association code of Ethics and the rhode island board of Medical licensure Association, code of Medical Ethics, opinion 2.068, “Physician Participation in interrogation” and discipline treats the American Medical Association code of Ethics as the legal standard. (2006), http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical- similarly, in ohio, the American Psychological Association and cPA ethics codes and stan- ethics/opinion2068.page; “American college of Physicians Ethics Manual, Fifth Edition,” dards are “used as aids in resolving ambiguities that may arise in the interpretation of the Annals of Internal Medicine 142, no. 7 (2005): 560–582, http://annals.org/article.aspx?arti- rules of professional conduct….” see Ohio Revised Code 4732.17. cleid=718312; American Psychological Association, “APA Ethics committee statement — no 23 see, e.g., Justine sharrock, “First, do harm,” Mother Jones (July/August 2009), 60–63; defense to torture” (June 2009), http://www.American Psychological luke Mitchell, “the ongoing Medicalization of torture,” the stream, Harper’s Magazine Association.org/ethics/programs/statement/torture-code.aspx. (1 August 2007), http://harpers.org/archive/2007/08/hbc-90000688. 34 see, e.g., kevin drum, “defining torture down,” Mother Jones (16 April 2009),http://mother 24 see, e.g., American Medical Association, code of Medical Ethics, “Frequently Asked Questions jones.com/kevin-drum/2009/04/defining-torture-down; kathleen clark, “Ethical issues raised in Ethics,” accessed July 2013, http://www.ama-assn.org/ama/pub/physician-resources/medical- by the olc torture Memorandum,” Journal of national security law and Policy 1 (2005), ethics/code-medical-ethics/frequently-asked-questions.page: “...the AMA is not in a position 455. to investigate allegations of unprofessional or unethical conduct at the local level. instead, 35 letter from louis J. catone to kathy roberts, Esq., center for Justice & Accountability we defer to state medical societies and national specialty societies to conduct fact finding (July 28, 2010), 2. investigations when such allegations are made.” 36 see appendix 4. 25 letter from the American Psychological Association to texas state board of Examiners of Psychologists, re: complaint filed by dr. Jim l. h. cox regarding dr. James Elmer Mitchell 37 in the context of the death penalty, professional responsibilities also extend to activities (30 June 2010), http://www.apa.org/news/press/statements/texas-mitchell-letter.pdf. that are not within the scope of activities to improve a patient’s well-being. deborah W. denno, “the lethal injection Quandry: how Medicine has dismantled the death Penalty,” 26 see stanley J. gross, “the Myth of Professional licensing,” American Psychologist 33 (1978), Fordham legal review 76 (2007), 49; nadia n. sawicki, “doctors, discipline, and the 1009. he argues, for example, that health professionals have lobbied for the creation of state death Penalty: Professional implications of safe harbor Policies,” Yale law and Policy boards “to secure public confidence and a monopoly of skill.” review 27 (2008), 107. 27 see, e.g., kevin b. o’reilly, “Medical board could discipline physicians for torture under n.Y. 38 however, this does not preclude physicians from serving as independent monitors to prevent bill,” American Medical News (10 June 2011), http://www.ama-assn.org/amednews/2011/06/ torture. see, e.g., World Medical Association, “the role of Physicians in the Prevention of 06/prsd0610.htm. he suggests that “the matter is best handled at the federal level” rather than torture,” accessed July 2013, http://www.wma.net/en/20activities/20humanrights/40torture/: through state laws. bovbjerg 2006, 33 [see note 14], notes the “frustration” expressed by board “the WMA believes that the participation of physicians in these visiting mechanisms members that the current disciplinary process “was not finding enough of what might be is -essential to address health issues related to cruel, inhuman, or degrading treatment, to termed ‘problem physicians’ or not finding them soon enough.” evaluate the health system and to assess the impact of general conditions of detention on the 28 see chapter 2. heath of detained population.” 29 sawicki 2010, 293. 39 see Physicians for human rights and University of cape town health sciences centre, dual loyalty Working group, 30 For example, some states give boards independence, broad powers, and discretion; others place Dual Loyalty and Human Rights in Health Professional Practice: (boston: Physicians for human rights and boards under the supervision of larger administrative agencies. A few limit a board’s function to Proposed Guidelines and Institutional Mechanisms University of cape town, March 2003), http://physiciansforhumanrights.org/library/reports/ that of advisory bodies. some states even vest licensing and disciplinary functions in two differ- dual-loyalty-and-human-rights-2003.html; Eric stover and Elena o. nightingale, The Breaking ent boards. see Federation of state Medical boards, Elements of a Modern State Medical and of Bodies and Minds (new York: W. h. Freeman & co., ltd., 1985). Osteopathic Board (Euless, tx: Federation of state Medical boards, May 2009), 4. 31 see, e.g., Federation of state Medical boards, The Essentials of a Modern Medical and Osteopathic 40 see also leonard rubenstein, “symposium guantanamo: how should We respond? First, Practice Act (Euless, tx: Federation of state Medical boards, 2010); American Psychological do no harm: health Professionals and guantanamo,” seton hall law review 37 (2007), 733: Association, Model Act for State Licensure of Psychologists (Washington, dc: American “interrogation for intelligence purposes is inevitably a deliberate effort to create anxiety, Psychological Association, 2010), http://www.apa.org/about/policy/model-act-2010.pdf. severe discomfort, pain, or stress in the interest of forcing disclosure of information.” 260 | Ethics AbAndonEd Notes | 261

41 it should be noted, however, that under American Medical Association and American ama/pub/physician-resources/medical-ethics/code-medical-ethics/opinion505.page: “the Psychiatric Association standards, a prohibition on health professional participation in interro- information disclosed to a physician by a patient should be held in confidence. the patient gation does not preclude health professionals from providing general training and instruction should feel free to make a full disclosure of information to the physician in order that the to interrogators. According to these standards, so long as the instruction is not in relation to a physician may most effectively provide needed services. the patient should be able to make specific interrogation and does not include methods intended to cause the subjects harm, this disclosure with the knowledge that the physician will respect the confidential nature of licensed health professionals can provide interrogation training without compromising their the communication. the physician should not reveal confidential information without the proper role as a healer. it would also still permit fully independent monitoring of interroga- express consent of the patient, subject to certain exceptions which are ethically justified tions by health professionals. because of overriding considerations.”

42 similarly, medical schools train their students to be healing professionals. see Audiey c. kao 48 Annette l. hanson, “confidentiality in corrections: fact or fiction?,” AAPL Newsletter 24, no 3. and kayhan P. Parsi, “content Analyses of oaths Administered at U.s. Medical schools in (1999), 8, http://www.aapl.org/newsletter/n243confidentiality_corrections.htm. 2000,” Academic Medicine 79, no. 9 (2004), 882–887: “Among the schools that used a modifi- 49 45 c.F.r. § 164.512(f); 45 c.F.r. § 164.512(k). cation of the hippocratic oath, most administered oaths that explicitly stated the importance for physicians to act with beneficence (78%)”; Ana Maria rancich and others, “beneficence, 50 see Annette l. hanson, “confidentiality in corrections: fact or fiction?,” AAPl newsletter justice, and lifelong learning expressed in medical oaths,” Journal of Continuing Education in the 24 (1999), 8, http://www.aapl.org/newsletter/n243confidentiality_corrections.htm. the Health Professions 25 (YEAr), 211: “most (75%) of the analyzed oaths express the principle of national commission on correctional health care views confidential medical treatment as beneficence”. an important standard for accreditation. specifically, it states: “health care encounters are private, with a chaperone present when indicated, and are carried out in a manner designed 43 see American Medical Association, report of the council on Ethical and Judicial Affairs, to encourage the patients’ subsequent use of health services. clinical encounters should be “cEJA report 10-A-06: Physician Participation in interrogation” (chicago: American Medical conducted in private and not observed by security personnel unless the inmate poses a proba- Association, 2006), http://www.ama-assn.org/resources/doc/code-medical-ethics/2068a.pdf: ble risk to the safety of the health care provider.”; Emil r. Pinta, “decisions to breach “physician involvement could also lead to the belief on the part of interrogators that they can confidentiality When Prisoners report violations of institutional rules,” Journal of the escalate the use of force until the physician intervenes.” American Academy of Psychiatric law 37 (2009), 154: “As a general principle, standards of 44 this broad definition is derived from recognized international standards on detained and care in prisons, including patient confidentiality, should strive to be the same as those in the imprisoned persons. see United nations, Standard Minimum Rules for the Treatment of open community.” Prisoners (1977), http://www1.umn.edu/humanrts/instree/g1smr.htm (applicable to “all 51 M. gregg bloche and Jonathan h. Marks, “doctors and interrogators at guantanamo bay,” categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to New England Journal of Medicine 353 (2005): 6–8. ‘security measures’ or corrective measures ordered by the judge”); Un general Assembly, resolution 43/173, “Un body of Principles for the Protection of All Persons under Any Form 52 Physicians for human rights and University of cape town health sciences centre, of detention or imprisonment,” (9 december 1988), http://www.un.org/documents/ga/res/ Dual Loyalty and Human Rights in Health Professional Practice (March 2003) [see note 41]; 43/a43r173.htm (standards are applicable to any person deprived of personal liberty as a result office of the United nations high commissioner For human rights, Manual on the Effective of conviction for an offence or for any other reason). Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) (new York and geneva: United nations, 2004), 45 these provisions would not affect the authority of health professional to consult on restraints http://www.unhcr.org/refworld/docid/4638aca62.html. used on the prisoner for his or her own safety or for the safety of others, subject to standards on the use of such restraints. 53 the language is from new York state Assembly, bill no. A6665c-2009 (11 March 2009), http://open.nysenate.gov/legislation/bill/A6665c-2009. 46 the World Medical Association considers it “unethical” for physicians to engage in tasks that do not preserve health or save lives, including “weaken the physical or mental strength of a 54 According to the Federation of state Medical boards’ 1995–1996 Exchange, sec. 3 human being without therapeutic justification; employ scientific knowledge to imperil health (a comprehensive presentation of information regarding medical boards’ structure and or destroy life, employ personal health information to facilitate interrogation, [and] condone, disciplinary functions), 46 boards have mandatory reporting requirements for all licensees. facilitate or participate in the practice of torture or any form of cruel, inhuman or degrading 55 see bovbjerg 2006, 20 [see note 14]. treatment.” World Medical Association, WMA Regulations in Times of Armed Conflict and Other Situations of Violence (1956; revised bangkok: WMA general Assembly, october 2012), 56 ibid. http://www.wma.net/en/30publications/10policies/a20/index.html. 57 For example, insufficient investigation of complaints by boards appears to be an endemic 47 American Medical Association, “Principles of Medical Ethics viii” (chicago: American Medical problem. see bovbjerg 2006, 26: outside audits of medical boards in california and virginia Association, 1957; revised 2001), http://www.ama-assn.org/ama/pub/physician-resources/ found “shortcomings in [the] extent of [the] investigation before closure.” medical-ethics/code-medical-ethics/principles-medical-ethics.page: “A physician shall respect the rights of patients, colleagues, and other health professionals, and shall safeguard patient 58 indeed, to the task Force’s knowledge, to date, only one board has assumed jurisdiction. see confidences and privacy within the constraints of the law”; American Medical Association, Cox v. Mitchell tx complaint (2010), in which the board implicitly assumed jurisdiction when code of Medical Ethics, opinion 5.05, “confidentiality” (1983), http://www.ama-assn.org/ it investigated the complaint against dr. James Mitchell and held informal proceedings. 262 | Ethics AbAndonEd Notes | 263

59 see Sarem v. Edmondson cA complaint (2005); Nicholl v. Edmondson cA complaint (2007); 67 see, e.g., Memorandum contra of Petitioners to respondent’s Motion to dismiss Filed May Bond v. Leso nY complaint (2007). these are discussed in detail in appendix 4. 18, 2011 at 7, 20-23, Bond v. Ohio State Board of Psychology, case no. 11 cv 00471 (court of common Pleas, Franklin county ohio 2011). 60 see Reisner v. Leso nY complaint (2010). 68 A statement of reasons in some circumstances could conserve resources reducing the litiga- 61 see chapter 2. tion costs of defending lawsuits aimed at compelling boards to disclose their reasons for dis- 62 see U.s. department of defense, instruction 6025.13, “Medical Quality Assurance (MQA) and missal. see, e.g., Memorandum contra of Petitioners to respondent’s Motion to dismiss Filed clinical Quality Management in the Military health system (Mhs)” (17 February 2011), requir- May 18, 2011, Bond v. Ohio State Board of Psychology, case no. 11 cv 00471 (court of common ing that military health professionals have a valid license to practice, and U.s. department of Pleas, Franklin county ohio 2011). defense, dod 6025.13-r, Military Health System (MHS) Clinical Quality Assurance (CQA) Program 69 see bovbjerg 2006, 50; see also Ohio Admin. Code § 4731-13-36 (“informal disposition may Regulation (2004), finding a license valid only if “the issuing authority accepts, investigates, and be made of any contested case by stipulation, agreed settlement, consent order, default, acts upon quality assurance information, such as practitioner’s professional performance, con- or dismissal”). duct, and ethics of practice, regardless of the practitioner’s military status or residency.” 70 For example, the ohio Administrative code states that a health professional may satisfy disci- some states ---exempt the health professionals they employ from state licensure require- plinary requirements through “satisfactory completion of all terms, conditions or limitations” ments, but congress has not elected to take that stance with respect to military health pro- imposed on her “through a board-approved consent agreement or board order.” Ohio Admin. fessionals. As a result, states should clarify that professionals who are granted licenses from Code § 4731-13-36. see generally bovbjerg 2006. texas Medical board, Texas Medical Board the board remain under that board’s jurisdiction. see state of texas, office of the Attorney Enforcement Process, http://www.tmb.state.tx.us/consumers/disciplinaryProcess.php, provides general, opinion no. JM-1247 (14 november 1990): “A person who is certified or licensed for separate closed-door conferences with the parties in which each is afforded the opportuni- under article 4512c is subject to the provisions of that act, even if that person holds employ- ty to present evidence and witnesses but not in the presence of the other party. ment that would exempt him or her from the licensing and certification requirements of the act.” to interpret otherwise would strip the licensure process of meaning for these profes- 71 see Sarim v. Medical Board of California, case no. gic 855 388 (superior ct of california, san sionals. see state of texas, office of the Attorney general, opinion no. Jc-0321 (5 January diego 2006); Bond v. La. St. Bd. of Examiners of Psychologists, no. 569127 (19th Judicial district 2001), interpreting texas statutes to exempt state psychology board licensees who are gov- ct., East baton rouge Parish, la 2009) ; Reisner v. Catone, no. 0115400 (n.Y. county state ernment employees from board investigations for misconduct. Although this issue has been supreme court, civil branch 2011); verified complaint for Writ of Mandamus at 8, Bond v. disputed in texas, it did not prevent the texas state board of Examiners of Psychologists Ohio State Board of Psychology, (court of common Pleas, Franklin county ohio 2011). from assuming jurisdiction to investigate and hold informal proceedings on a complaint 72 , 2009-cA-1735 (la. App. 1 cir. 6/11/10); against former ciA contractor James Mitchell. danny robbins, “texas board won’t discipline Bond v. La. St. Bd. of Examiners of Psychologists Reisner v. Catone, no. 0115400 (n.Y. county state supreme court, civil branch 2011). ciA psychologist,” Associated Press (25 February 2011). 73 brief for Psychologists for social responsibility, Psychologists for an Ethical APA, 63 A similar mandatory duty is imposed on california law enforcement officials to investigate Psychoanalysis for social responsibility, the Juvenile Justice Project of louisiana, and the reports of . see California Penal Code 11166 and Alejo v. City of Alhambra, 75 cal. institute of Women and Ethnic studies as Amici curiae supporting Plaintiff-Appellant, App. 4th 1180, holding that the mandatory duty to investigate was reasonable and did not Bond , no. 569127 (19th Judicial district ct., East constitute an undue burden on law enforcement because police officers are uniquely placed v. Louisiana State Board of Examiners of Psychologists baton rouge Parish, la 2009). see also, e.g., James gill, “tortured logic,” and specially trained to respond to such complaints, and that failure to report would thwart New Orleans Times- (19 May 2010), http://www.nola.com/opinions/index.ssf/2010/05/tortured_logic_ the scheme of child abuse prevention. Picayune james_gill.html. 64 bovbjerg (2006), vi [see note 14]. 74 letter from Jaime t. Monie, Executive director, la. st. bd. of Examiners of Psychologists, to 65 see, e.g., Reisner v. Catone, no. 0115400 (n.Y. county state supreme court, civil branch dr. trudy bond, complainant (15 April 2008) [on file with recipient]. complainants disputed 2011); Memorandum contra of Petitioners to respondent’s Motion to dismiss Filed May 18, the board’s conclusion and sought judicial review of the board’s decision. review was denied 2011, Bond v. Ohio State Board of Psychology, case no. 11 cv 00471 (court of common Pleas, on standing grounds. Bond v. La. St. Bd. of Examiners of Psychologists, 2009-cA-1735 (la. App. Franklin county ohio 2011); brief of Appellant dr. trudy bond in support of her appeal from 1 cir. 6/11/10). a decision of the East baton rouge district court, Bond v. Louisiana State Board of Examiners of Psychologists, 2009-cA-1735 (louisiana court of Appeals, First cir. 2009). 75 see noralyn o. harlow, Annotation, Applicability of statute of limitations or doctrine of laches to Proceeding to revoke or suspend license to Practice Medicine, 51 A.l.r. 4th 1147, 66 see appendix 4 regarding the ohio state board of Psychology’s responses to Bond v. James oh 1151 (1987). complaint (2008) and Reese v. James oh complaint (2010). some responses suggest that the boards might not have investigated at all. see discussions in appendix 4 regarding Bond v. 76 see, e.g., ohio r.c. sec. 4732; Min. stat. sec. 148. James lA complaint (2007); Bond v. Zierhoffer Al complaint (2008); Bond v. Leso nY 77 see, e.g., cal. bus. & Prof. code § 2230.5. complaint (2007); Reisner v. Leso nY complaint (2010); Sarim v. Edmondson cA complaint (2005); Nicholl v. Edmondson cA complaint (2007). 78 noralyn o. harlow, Annotation, Applicability of statute of limitations or doctrine of laches to Proceeding to revoke or suspend license to Practice Medicine, 51 A.l.r. 4th 1147, 1151 (1987). 264 | Ethics AbAndonEd Notes | 265

79 Federal criminal offenses, crimes punishable by death, certain crimes of terrorism, and certain disciplinary efforts.”); U.s. department of health and human services, “Medical licensure sex offenses carry no statutory time bars. Every state has felonies for which there are no and discipline: An overview” (Pub. no. P-ol-86-00064) (1986), 2 (finding that medical statutes of limitations, often including the most serious instances of homicide and sex offens- boards are in “an extremely vulnerable position,” and that they lack the funds to handle the es. see charles doyle, crs report for congress, Statutes of Limitations in Federal Criminal jobs before them). Cases: An Overview (updated 9 April 2007). similar reasoning supports the lack of any statutes 88 Marc t. law and Zeynep k. hansen, “Medical licensing board characteristics and Physician of limitations in international criminal law for war crimes, crimes against humanity, and tor- discipline: An Empirical Analysis,” Journal of health Politics, Policy & law 35 (2010), 69, 86. ture. see, e.g., Un convention Against torture Art. x; icc rome statute Art. 29; convention on the non-Applicability of statutory limitations to War crimes and crimes Against 89 sawicki 2010, 299; bovbjerg 2006, 38 (finding that board managers and staff often humanity. pursue grounds for discipline based on difficulty of investigation and prosecution); richard P. kusserow, U.s. department of health and human services, “state Medical 80 see, e.g., behavioral science consultation team, Joint intelligence group, Joint task Force – boards and Medical discipline” (Pub. no. oEi-01-89-00560) (1990), 10, 15 (noting that guantanamo, standard operating Procedures (2005), para. 9(3), http://www.aclu.org/files/ because quality of care inquiries tend to be time-consuming, boards tend to look for projects/foiasearch/pdf/doddon000760.pdf: “sanitize uniforms by placing tape over the another basis to take action); U.s. department of health and human services, “Medical name when working in or visiting areas where contact with detainees is possible, including licensure and discipline: An overview” (Pub. no. P-ol-86-00064) (1986), 14 (stating detainee blocks, interrogation buildings, and medical facilities.” that cases involving incompetency are more difficult to develop than cases involving 81 A health professional may have a defense (the defense of laches) if there was an unreasonable conviction for a felony or fraud). delay in bringing disciplinary proceedings and this prejudiced the physician’s ability to meet 90 see, e.g., Reisner v. Catone, nY Attorney Motion to dismiss the verified Petition (14 the case against him. see noralyn o. harlow, Annotation, Applicability of statute of January 2011) (arguing that “in the view of the distant location of the events, the passage limitations or doctrine of laches to Proceeding to revoke or suspend license to Practice of time, national security implications and the fact that relevant information was likely Medicine, 51 A.l.r. 4th 1147, 1151 (1987). An example of this might be when, as a result of unavailable, conducting an investigation here would plainly require a major investment of the passage of time, a key witness the health professional wishes to call is no longer available. the [new York state Education department’s] resources - - regarding actions that did not however, such a defense would be unlikely to succeed if the reason for the delay was the involve new York state residents”); bond v. Zierhoffer Al complaint, letter from kathy concealment of the health professional’s complicity in the abuse, particularly if the health cawood to trudy bond (18 december 2008) (denying jurisdiction over the complaint sub- professional played a role in the concealment of his own complicity. mitted by dr. bond after what cawood described as “careful consideration and extensive 82 see danny robbins, “texas board won’t discipline ciA psychologist,” Associated Press research into the feasibility of the board’s investigation of the issues raised” in that com- (25 February 2011). plaint, filed less than a month earlier). 83 see, e.g., ohio state Medical Association, “investigations by the state Medical board of ohio- 91 see, e.g., sidney M. Wolfe and others, Public citizen health research group, Ranking of the Answers to Frequently Asked Questions,” accessed July 2013, http://www.osma.org/files/docu- Rate of State Medical Boards’ Serious Disciplinary Actions, 2007-2009 (2010). ments/tools-and-resources/medical-board-licensing-and-discipline/med-bd-investigation- 92 sawicki 2010, 300. brochure.pdf: “orc§4731.22 (F) authorizes the board to investigate violations of the Medical Practice Act and to take depositions, issue subpoenas and compel the attendance of witnesses 93 see chapter 2. and production of documents related to medical board investigations.” 94 the task Force is not aware of any referrals to state boards for related conduct. 84 Federation of state Medical boards, The Essentials of a Modern Medical and Osteopathic Practice 95 this is not to say that boards cannot adjudicate any complaints without the cooperation Act (Euless, tx: Federation of state Medical boards, 2010), 18. of these agencies. some cases may involve enough publicly available information on 85 such a book would also be useful to judges reviewing state board actions in response to com- which to base an investigation and finding. see, e.g., arguments made by complainants plaints about such misconduct, as well as to state legislators, attorneys, and others considering in ohio. nor does this mean that boards should not use every tool they have to attempt reform. to secure that compliance. boards should not preemptively conclude that the federal agencies will not cooperate. if boards have unsuccessfully sought cooperation from the 86 see, e.g., tijani r. cole, “the courts & the Media bench book,” new England law review 35 dod or ciA, they have not disclosed information about these attempts to complainants, (2001), 853 (a guide for courts on how to deal with the press within First Amendment con- courts, or the public. straints); stephanie P. brown, national center for healthy housing, Federal Lead-Based Paint Enforcement Bench Book (January 2009) (a bench book to promote judicial enforcement of 96 Environmental Protection Agency, office of the inspector general, “confidentiality, lead-based paint and environmental laws); Pennsylvania coalition Against rape, Pennsylvania Anonymity, & Whistleblower Protection,” accessed July 2013, http://www.epa.gov/oig/hotline/ Sexual Violence Bench Book (2007). protection.htm. 87 bovbjerg 2006, 9-10 [see note 15]. see also richard P. kusserow, U.s. department of health 97 United states department of labor, “other Workplace standards: Whistleblower and and human services, “state Medical boards and Medical discipline” (Pub. no. oEi-01-89- retaliation Protections,” accessed July 2013, http://www.dol.gov/compliance/guide/whistle.htm. 00560) (1990), 7 (“significant staff shortages continue to impede the [medical] boards’ 266 | Ethics AbAndonEd Notes | 267

APPEndix 4 18 telephone interview with dr. trudy bond (29 February 2008). 19 dr. steven reisner is a member of this task Force. 1 this list does not purport to be exhaustive. it includes only the complaints of which the task Force is aware and that are in the public domain. 20 complaint filed with the new York office of Professional discipline by steven reisner against John leso (7 July 2010), http://cja.org/article.php?list=type&type=441, at 1. 2 declaration of John s. Edmondson, Md (19 october 2005), ¶ 1, filed in Al Razak v. Bush. 21 id. 3 id. 22 letter from louis J. catone to kathy roberts, Esquire, center for Justice & Accountability 4 complaints filed with the Medical board of california by sarim et al. against John Edmondson (28 July 2010), at 2. (11 July 2005). 23 letter from kathy roberts to louis J. catone, director (26 August 2010), at 1. 5 Sarim v. Medical Board of California, court transcript (13 January 2006), 4–5 [hereinafter sarem court transcript]. 24 Reisner v. Catone, verified Petition, at 2, 9–10. 6 sarem court transcript. 25 Reisner v. Catone, Memorandum of law in support of the respondents’ cross-Motion to dismiss the verified Petition, at 2, 10–25. 7 Sarem v. Medical Board of California, ruling on demurrer and Judgment for dismissal (16 March 2006), 2. 26 Reisner v. Catone, court transcript, at 1. 8 complaint filed with the Medical board of california by dr. david nicholl (26 January 2006). 27 transcript of oral Argument (6 April 2011), Reisner v. Catone, supreme court of the state of see also letter from susan cady, central complaint Unit, Medical board of california to dr. new York, county of new York: civil term: Part19, index no. 101154/10, http://cja.org/arti- david nicholl, File no. 20-2005-16809 (5 July 2007). cle.php?list=type&type=415, 14–15. 9 complaint filed with the Medical board of california by dr. david nicholl (26 January 2006). 28 Reisner v. Catone, 929 n.Y.s.2d 403 (n.Y. sup. 2011). 10 letter from susan cady, central complaint Unit, Medical board of california to dr. david 29 larry c. James, curriculum vitae, at 2 (obtained from Wright state University in 2010); nicholl, File no. 20-2005-16809 (5 July 2007). but see sarem court transcript, 17 (in which American Psychological Association, Presidential task Force on Psychological Ethics and deputy Attorney kerry Weisel, 18 months earlier, acknowledges the medical board’s jurisdic- national security (PEns), 2003 Members’ biographical statement, tion of the 2005 complaints alleging misconduct that took place on a federal facility and http://www.clarku.edu/peacepsychology/tfpens.html; complaint filed with the ohio state military base). board of Psychology by Michael reese, trudy bond, colin bossen, and Josephine setzler against larry James (7 July 2010), 2. 11 see sarem court transcript. 30 larry c. James, curriculum vitae, at 2 (obtained from Wright state University in 2010). 12 E-mail from dr. david nicholl to deborah Popowski (17 october 2012). 31 complaint filed with the louisiana state board of Examiners of Psychologists by trudy bond 13 id. against larry James (29 February 2008). 14 letter from Jim h. Mcnatt, Md, Medical director, georgia composite state board of Medical 32 letter from Jaime t. Monic to trudy bond (15 April 2008), 1. Examiners, to dr. david nicholl (26 June 2007). 33 letter from terry lodge to Jaime t. Monic (23 April 2008), 1. 15 see larry c. James, Fixing Hell: An Army Psychologist Confronts Abu Ghraib (grand central 34 bond v. Louisiana State Board of Examiners of Psychologists, Petition for Judicial review of Publishing, 2008), 24–28; U.s. senate committee on Armed services, Inquiry into the Administrative Action and declaratory Judgment (22 July 2008), ¶¶ 13–14. the lsbEP later Treatment of Detainees in U.S. Custody, 110th cong., 2d sess. (2008), 38, http://www.armed- claimed that it did not receive this additional submission of information in time to consider services.senate.gov/Publications/detainee%20report%20Final_April%2022%202009.pdf. it during its second meeting on June 20, 2008. Bond v. LSBEP, Answer to Petition for Judicial 16 task Force Member deborah Popowski represented dr. bond and other complainants in a review of Administrative Action and declaratory Judgment (25 August 2008), ¶ 13. 2010 complaint with the ohio state Psychology board against dr. larry James. see infra. she 35 Bond v. LSBEP, Answer to Petition for Judicial review of Administrative Action and continues to represent dr. bond in pending litigation against the ohio board. in addition to declaratory Judgment (25 August 2008), ¶ 13. assuming direct representation of dr. bond in the 2010 ohio complaint and related litigation, Ms. Popowski has at times advised dr. bond on an ad hoc basis with regard to the other com- 36 Bond v. LSBEP, Petition for Judicial review of Administrative Action and declaratory Judgment plaints or legal challenges brought by dr. bond in other states. (22 July 2008), ¶¶ 30–32, at 10.

17 complaint filed with the new York office of Professional discipline by trudy bond against 37 Bond v. LSBEP, Answer to Petition for Judicial review of Administrative Action and John leso (5 April 2007). declaratory Judgment (25 August 2008), ¶ 29. 268 | Ethics AbAndonEd Notes | 269

38 Bond v. LSBEP, Peremptory Exemption of no right of Action (5 May 2009), ¶ 2. 62 complaint filed with the Alabama board of Examiners by dr. trudy bond against dr. diane Zierhoffer (21 november 2008); letter from kathy cawood to trudy bond (18 december 2008). 39 Bond v. LSBEP, court transcript (13 July 2009). 63 letter from terry Jonathan lodge to kathy cawood (17 February 2009). 40 id., at 18. 64 letter from trudy bond to kathy cawood (1 April 2009). 41 Bond v. LSBEP, brief of Appellant dr. trudy bond in support of her Appeal from a decision of the East baton rouge district court (15 october 2009).

42 Bond v. LSBEP, Psychologists for social responsibility Amicus brief (22 February 2010), at 1. 43 Bond v. LSBEP, First circuit opinion (2009 cA 1735) (11 June 2010). 44 complaint filed with the ohio state board of Psychology by trudy bond against larry James (8 July 2008). 45 letter from carolyn knauss, investigator, to trudy bond (16 september 2008). 46 see note 16 describing task Force member deborah Popowski’s role as counsel for this matter.

47 larry c. James, Fixing Hell (2008). 48 complaint filed with the ohio state board of Psychology by Michael reese, trudy bond, colin bossen, and Josephine setzler against larry James (7 July 2010).

49 Bond et al. v. Ohio State Board of Psychology, verified complaint for Writ of Mandamus (13 April 2011). 50 letter from carolyn knauss to beth collis (26 January 2011)

51 Bond et al. v. OSBP, verified complaint for Writ of Mandamus (13 April 2011). 52 Bond et al. v. OSBP, Petitioners’ request for Production of documents (13 April 2011). 53 Bond v. OSBP, respondent ohio state board of Psychology’s Motion to dismiss complaint in Mandamus (18 May 2011).

54 Bond v. OSBP, Memorandum contra of Petitioners to respondent’s Motion to dismiss (20 July 2011).

55 Bond v. OSBP, order of reference to Magistrate skeens (24 october 2011). 56 complaint filed with the texas state board of Examiners of Psychologists by Jim cox against James Mitchell (17 June 2010), 27. 57 letter from carol E. goodheart, APA President, to the tsbEP re: complaint filed by dr. Jim l. h. cox regarding dr. James Elmer Mitchell (30 June 2010).

58 danny robbins, “texas board Won’t discipline ciA Psychologist,” Associated Press (25 February 2011). see also tex. gov’t. code, § 2001.056; tex. Admin. code, §§ 469.5(h), 470.8(a)(2), (a)(4). 59 E-mail from Joseph Margulies to deeona gaskin (20 october 2011). 60 E-mail from Joseph Margulies to deborah Popowski (25 september 2012). 61 complaint filed with the Alabama board of Examiners by dr. trudy bond against dr. diane Zierhoffer (21 november 2008).